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TOPIC 7 : RIGHT TO INFORMATION ACT UNDER CLD PORTIONS
UPSC NO QUESTION ASKED.
2022
UPSC Discuss the constitutionality of Right to Information Act, 2019 in light of
2021 recent judgment by the Supreme Court of India.
HOW TO ANSWER THIS QUESTION
INTRODUCTION : Recent case law before the 2019 Amendment to RTI Act was Anjali
Bhardwaj vs. Union of India 2019 SC.
BODY OF THE ANSWER :
• In Anjali Bhardwaj case, SC issued extensive guidelines for smooth functioning
of RTI Act esp. on appointment aspect.
• Analyse the 2019 RTI Amendment Act vis-à-vis Anjali Bhardwaj.
• Your opinion on Constitutionality and Government Reasoning
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CONCLUSION : How 2019 Act impedes the independence of RTI.
INTRODUCTION
Anjali Bhardwaj vs. Union of India 2019 SC wherein Supreme Court of India had given
extensive guidelines for ensuring smooth working of RTI Act. However these guidelines
are now futile given the 2019 RTI 2019 Amendment Act.
2019 AMENDMENT TO RTI ACT
2019 Amendment to RTI Act resulted in deliberate dismantling of architecture
whereby Central government to unilaterally decide the tenure, salary, allowances and
other terms of service of Information Commissioners, both at the Centre and the States.
Previous position was that Information commissioners (CIC/SIC), were given the tenure,
salary, allowances and other terms of service of Election Commissioners (CEC/SECs)
who, in turn, equal to status of Supreme Court judge.
Currently, as the government reported, the CIC OR SIC who are statutory bodies cannot
be equated to CEC or SECs, who are constitutional authorities and therefore, this is
rationalized.
Interestingly, the guidelines issued in Anjali Bhardwaj (2019 SC) was vocal on that
aspect that
✓ selection process of CIC/SIC, who are equal to CEC/SEC, have to be publicised
and that, their selection should be done on the basis of objective and rational
criteria.
✓ Recommendation of appointment when given to President or Governor, it should
be accompanied with the details of their eminence in public life and experience.
These guidelines are effectively overridden as the 2019 Amendment makes the
central government as sole authority on appointment.
CONSTITUTIONALITY OF 2019 AMENDMENTS
• Guidelines given in Anjali Bhardwaj case for effective enforcement was overruled
by the 2019 RTI Amendment.
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• Now, the decision of the Central government is binding upon the Information
Commissioners. This allows unbridled and uncanalised discretionary power to
the Central government that jeopardises the independence of Information
Commissioners.
• This is because their tenure, salary, allowances and other terms of service is in
the hands of Central government. This, in effect, would violate the Article 19 of
the Constitution of India as it effectively interferes the right to information of
citizens.
• Further, this matter is in sub-judice [as of February 2023]
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UPSC Question 7(c) Discuss the rationale of exemption to disclosure of information
2020 endangering life and the information regarding criminal trial and criminal
investigation provided under the Right to Information Act, 2005 in the light
of decided cases.
HOW TO ANSWER THIS QUESTION
INTRODUCTION : No introduction required.
BODY OF THE ANSWER :
• Explain Section 8(1)(g) of RTI Act with case laws
• Explain Section 8(1)(h) of RTI Act with case laws
CONCLUSION : No Conclusion required.
Section 8(1)(g) of the RTI Act : If the disclosure would endanger the life and physical
safety of any person or identify the source of information or assistance given in confidence
for law enforcement or security purposes, then public authority is exempted from
disclosure of such information.
• Meaning of LIFE under Article 21 is given an expansive and liberal construction
such as to include, the right to live with dignity, right to shelter, right to basic
needs and even the right to reputation. This meaning is applicable for section
8(1)(g) the RTI Act.
• ‘PHYSICAL SAFETY’ means the likelihood of assault to physical existence of a
person.
• Information putting an individual's safety or liberty at risk, e.g., the identity of
people who blow the whistle on corruption inside their organization should be
protected, because otherwise they may be targeted for discrimination or even
violence.
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CASE LAWS :
1. In CENTRAL BOARD OF SECONDARY EDUCATION AND ANR. V. ADITYA
BANDOPADHYAY AND ORS, the Hon’ble Supreme Court has held that access to
evaluated copies can be allowed only to the extent of answer-book which does
not contain any information or signature or initials of the
examiners/coordinators/ scrutinizers/head examiners disclosing their identity.
2. In BIHAR PUBLIC SERVICE COMMISSION V. SAIYED HUSSAIN ABBAS RIZWI, marks
obtained by the a person can be disclosed but the disclosure of individual names
and marks they awarded would be hardly hold relevancy either to the concept of
transparency or for proper exercise of the right to information within the
limitation of the Act.
Section 8(1)(h) of the RTI Act : Public authority is not under obligation to furnish
information that would impede the process of investigation or apprehension or
prosecution of offenders.
• Definition of “investigation‟ under CrPC can be applicable for RTI Act also. It
would mean all actions of law enforcement, disciplinary proceedings, enquiries,
adjudications and so on.
• When the investigation is in progress, be information which needs to be
protected, such as witnesses’ identities, circumstances being put together against
a suspect, etc. cannot be disclosed.
CASE LAWS :
1. In B.S. MATHUR V. PUBLIC INFORMATION OFFICER OF DELHI HIGH COURT, the
High Court of Delhi has held that mere pendency of an investigation or inquiry is
by itself not a sufficient justification for withholding information. It must be
shown that the disclosure of the information sought would impede or even on a
lesser threshold, hamper or interfere with the investigation
2. In SARVESH KAUSHAL V. FOOD CORPORATION OF INDIA AND OTHERS, the
Central Information Commission has held that documents relating to the
departmental enquiry are exempted from disclosure pending departmental
enquiry by virtue of Section 8(1)(h) of the RTI Act.
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UPSC Question 5(e) "Pragmatic regime of right to information for citizens is the key
2019 to good governance in India, but it is not being implemented in its original
spirit.” Examine it in the light of decision of the Supreme Court of India in
Anjali Bhardwaj vs. Union of India, February 2019.
HOW TO ANSWER THIS QUESTION
INTRODUCTION : Your introduction must give points on WHY Right to information
will lead on good governance, but the implementation issues of RTI with reference to
Anjali Bhardwaj case.
BODY OF THE ANSWER :
• Why guidelines were issues in Anjali Bhardwaj case.
• What were the guidelines and the implications of 2019 Amendment.
CONCLUSION : No Conclusion required.
IMPORTANCE OF RIGHT TO INFORMATION
i. Much before the enactment of RTI Act, which came on the statute book in the
year 2005, Supreme Court repeatedly emphasised the people’s right to
information to be a facet of Article 19(1)(a) of the Constitution.
ii. It has been held that the right to information is a fundamental right and flows
from Article 19(1)(a), which guarantees right to speech. This right has also been
traced to Article 21 which concerns about right to life and liberty.
iii. There are umpteen number of judgments declaring that transparency is the key
for functioning of a healthy democracy such as State of Uttar Pradesh v. Raj
Narain, S.P. Gupta vs. President of India and Others etc..1
1
In the matter of State of Uttar Pradesh v. Raj Narain(AIR 1975 SC 865 para 74)., a Constitution Bench of
Supreme Court held that: "In a government of responsibility like ours, where all the agents of the public must
be responsible for their conduct, there can but few secrets. The people of this country have a right to know
every public act, everything, that is done in a public way, by their public functionaries”
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WHY GUIDELINES WERE ISSUED IN ANJALI BHARDWAJ CASE
Anjali Bhardwaj vs. Union of India 2019 SC wherein Supreme Court of India had given
extensive guidelines for ensuring smooth working of RTI Act.
These guidelines were given as the
✓ neither the Central Government in respect of CIC nor the State Government in
respect of SICs, are filling the vacancies for the appointment of Commissioners in a
timely manner.
o As a result the functioning of RTI Act was stifled.
o It lead to huge backlogs of appeals and complaints in many Commissions
across the country.
✓ Further this is perpetuated due to lack of transparency in the appointment of
Information Commissioners inasmuch as the Central Government as well as various
State Governments have failed to adopt proper procedure to ensure transparency in
the shortlisting, selection and appointment of Information Commissioners. This lack
of transparency, according to the petitioners, had led to filing of several cases in
different courts challenging these appointments.
GUIDELINES GIVEN BY THE COURT IN ANJALI BHARDWAJ
1. Selection to CIC and SIC has to be publicised along with terms and conditions such
that they should have eligibility of election commissioners. This requirement is no
longer valid as the Amendment to 2019 RTI Act, as the central government will
determine the terms and conditions of appointment.
2. Shortlisting for the appointments to be done on the basis of objective and rational
criteria.
S.P. GUPTA VS. PRESIDENT OF INDIA AND OTHERS : (AIR 1982 SC 149) "….The concept of an open government
is the direct emanation from the right to know which seems to be implicit in the right of free speech and
expression guaranteed under Article 19(1)(a)…”
UNION OF INDIA VS. ASSOCIATION OF DEMOCRATIC REFORMS : "The right to get information in democracy is
recognised all throughout and it is natural right flowing from the concept of democracy….”
RESERVE BANK OF INDIA VS. JAYANTILAL N. MISTRY : " The ideal of 'Government by the people' makes it
necessary that people have access to information on matters of public concern. The free flow of information
about affairs of Government paves way for debate in public policy and fosters accountability in Government. It
creates a condition for 'open governance' which is a foundation of democracy.”
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3. Selection should not be limited to government employees or ex-government
employees. Even the persons of eminence in public life with wide knowledge and
experience can be appointed. It can be namely from law, science and technology,
social service, management, journalism, mass media or administration and
governance.
4. Recommendation of appointment when given to President or Governor, it should be
accompanied with the details of their eminence in public life and experience. Once
again, this requirement is no longer valid, as the Amendment to 2019 RTI Act, as the
central government will determine the terms and conditions of appointment.
5. Further, SC had asked the government to fill up vacancies, in future, without any
delay.
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UPSC “Mahatma Gandhi, the Father of Nation, observed that the meaning of real
2018 freedom is not to acquire authority by few but to acquire the capacity to
question the abuse of such authority.” Examine, in the light of the above
statement, the obligations of the public authorities and explain whether they
have discharged it effectively during the last about seven decades. 2
HOW TO ANSWER THIS QUESTION
INTRODUCTION : Your introduction must give the definition of “Public Authority” so
that we could understand their obligations.
BODY OF THE ANSWER :
• Obligations of Public Authorities under RTI
• Track record of Public Authorities since independence.
CONCLUSION : Importance of RTI
WHO IS PUBLIC AUTHORITY
Section 2(h) of RTI Act defines "Public authority" as
i. any authority or body or institution of self-government
ii. established or constituted –
o under Constitution of India or
o any law of Parliament or State legislature or
o by notification issued or order made by the appropriate Government, and
includes any— (i) body owned, controlled or substantially financed; (ii)
non-Government organisation substantially financed, directly or
indirectly by funds provided by the appropriate Government
2
INTERESTING TRIVIA : A: Mahatma Gandhi was never accorded the ‘Father of the Nation’ title by
Government of India and no rule or ordinance was ever passed in this regard. This was stated by the Union
cultural ministry in a response to an RTI query filed by Hathras resident Gaurav Agarwal.
https://timesofindia.indiatimes.com/city/agra/mahatma-gandhi-was-never-declared-father-of-nation-reveals-
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OBLIGATIONS OF PUBLIC AUTHORITIES UNDER RTI ACT
There are various provisions under RTI to ensure that right to information becomes a
reality. It is a self-contained legislation, providing a comprehensive framework in this
behalf.
1. Information Commissions have been set up at the Centre (CIC) and in all the
States (SICs) to adjudicate on appeals and complaints of persons who have been
unable to secure information in accordance with the RTI Act or are aggrieved by
violations of the RTI Act.
2. Section 3 declares that all citizens shall have the right to information, of course,
subject to the provisions of this Act.
3. Section 4 puts an obligation on every public authority to provide information.
4. The RTI Act also provides in-house mechanism for giving information by these
public authorities.
5. For this purpose, each public authority is supposed to designate as many officers
as Central Public Information Officers (for short, ‘CPIOs’) or State Public
Information Officers (for short, ‘SPIOs’) who are supposed to provide information
to persons requesting for the information under this Act.
6. Timelines are set during which CPIOs/SPIOs are supposed to give the
information, namely, within 30 days of the receipt of the request for obtaining
information. Within this period either information is to be provided or request is
to be rejected.
7. Rejection can be only for a reason specified in Sections 8 and 9 of the Act.
TRACK RECORD OF PUBLIC AUTHORITIES SINCE INDEPENDENCE
The Main thrust of RTI law is to change the culture of secrecy, red-tapism and aloofness
that has long plagued India’s monolithic and opaque bureaucracy.
Public authorities before enactment of RTI Act,
o Were lethargic
o did not have any fear on responsibility
o Taking protection of Official Secrecy Act unnecessarily.
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o Files and Documents in government offices not maintained properly.
CONCLUSION : Much before the enactment of RTI Act, which came on the statute book
in the year 2005, Supreme Court repeatedly emphasised the people’s right to
information to be a facet of Article 19(1)(a) of the Constitution.
Work nature in Government offices after the implementation of the Act completely
changed and commitment, transparency and Impartiality exists. The RTI is a platform to
citizens of the country against injustice, partiality in administration and eradication of
corruption. Millions of people across the country using RTI to improve their economic
and social status, which is very refreshing development.
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UPSC “Notwithstanding transparency of governance, certain information’s have
2017 been exempted from disclosure under the rights to information Act, 2005.”
Discuss the relevant provisions and limitations on disclosure of information.
LIMITATIONS ON DISCLOSURE OF INFORMATION :
Right to information under RTI Act 2005 is not absolute, it can be legitimately restricted
in exceptional circumstances.
In the case of Rakesh Sanghi v. International Advanced Centre for Powder Metallurgy &
New Materials, Hyderabad,wherein the CIC held that the citizen’s right to seek
information is not absolute but is conditioned by the Government’s right to invoke
exemptions, wherever such exemption applicable. CIC noted that no canon of
transparency or public interest would justify that Research and technological
Institutions part with their research data or vital information without expecting to
benefit tangibly or intangibly from such exchange/disclosure.
RELEVANT PROVISION ON RESTRICTION OF
DISCLOSURE OF INFORMATION
Section 8 and 9 of the Act enumerate the categories of information which are exempt
from disclosure.
Section 8(1) lists all of the exemptions:
Section 8(1)(a)-affecting sovereignty & integrity of India/security
/strategic/scientific and economic interest of the country/friendly relations with
other countries/incitement of offence.
Section 8(1)(b)-if information expressly forbidden by court/contempt of
court.
Section 8(1)(c)-breach of privilege of Parliament/State Legislature.
Section 8(1)(d)- commercial confidence/trade secrets affecting competitive
position of third party.
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Section 8(1)(e)-Fiduciary capacity info.
Section 8(1)(f)-info received from foreign govt. in confidence.
Section 8(1)(g)-affecting life and physical safety of any person.
Section 8(1)(h)-impede the process of investigation/prosecution pending.
Proper justification should be given. It can be disclosed if no stay of court. Merely
sub-judice can’t be accepted.
Section 8(1)(i)-cabinet papers-not to be disclosed till a final decision is taken.
Section 8(1)(j)-personal info of third party can be disclosed only in public
interest. Consent of third party u/Section 11 be obtained if CPIO intends to
disclose.
Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923)
nor any of the exemptions permissible in accordance with sub-section (1), a public
authority may allow access to information, if public interest in disclosure outweighs the
harm to the protected interests
Section 24 read with Schedule 2 contains the 22 organizations names of the Intelligence
and Security organizations which are exempt from the purview of the Act. However,
these agencies do not enjoy absolute immunity. These agencies have to provide
information regarding any allegation of corruption or act of human right violation
sought by citizens.
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UPSC "The Right to Information Act, 2005 was enacted in order to promote
2016 transparency and accountability in the working of every public authority."
How far has this goal been achieved by the Right to Information Act, 2005 in
the last ten years ? Critically analyse your answer with the support of
exceptions and case law. 15 marks
SIGNIFICANT ACHIEVEMENTS OF RTI ACT 2005
Right to Information Act, 2005 has been one of the most empowering legislations for
people as it puts an obligation on the government to respond to them in a time-bound
manner, to get them information to hold the government accountable.
1. The law has, in many ways, tilted the balance of power in favour of those
governed.
o It enabled accountability on those who occupy high offices and to know
whereabouts taxpayers’ money. This exposed big-ticket scams such as the
Adarsh, Commonwealth Games and Vyapam scams.
o It was able to expose human rights violations, and then force accountability
in those cases as well.
2. Every citizen is empowered to get information. All that one need to do is to make
a request in writing as no fixed proforma is required, pay minimal fees and specify
the particulars of the information sought.
o Sub-Section (2) of Section 6 specifically says that an Applicant, making request for
information, is not required to give any reason for requesting the information or any
other personal detail, except those that may be necessary for contacting him.
3. The Right to Information is a means of social audit. It empowers to carry out
social audit of the governmental organisations by obtaining information on work
executed and that prevailing on the ground to find out the gaps in provisions of
services
o “Right to information is not only a human right but also an essential tool of
democracy” (Union of India v. Assn. for Democratic Reforms (2002) 5SCC294; People’s
Union for Civil Liberties (PUCL) v. Union of India (2003) 4 SCC399).
o It helps in combating corruption and misuse of power.
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o It brings good governance through accountability and transparency and thus
strengthens democratic institutions
o Judiciary has also played a key role in bringing out social dimension of the RTI by
protecting rights of deprived sections of the society.
CONCLUSION : The major impediment is the lack of awareness of this law and lack of
widespread adoption. Successive governments have tried to whittle down this law,
beginning with the United Progressive Alliance itself, the creator of this law. State
governments have tried and are still trying to do it. But the two biggest and successful
attempts have been made or are being made by the National Democratic Alliance
government. Once in 2019, and the second now, by way of the Data Protection Bill
which will most likely pass.
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UPSC No Question Asked
2015
UPSC No Question Asked
2014
UPSC Question 7(a) “An attempt by all political parties to bring amendments to the
2013 RTI Act, 2005 is to sabotage the steps towards transparency of governance in
this country.” Critically evaluate the statement.
INTRODUCTION : The Right to Information Act, 2005 was enacted by the Government
of India 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
AMENDMENTS AND RTI LAW
• “Amendments” have haunted the Right to Information (RTI) community ever since
the RTI Act came into effect almost 17 years ago.
• Of the package, the RTI law was the most successful, gaining in momentum faster
and wider than anyone expected. Not only empowering the ordinary citizen, it
became the means to unearth scams and scandals of those in power.
2006 ITSELF: Amendments to the RTI Act was first proposed by the government in the
year 2006 itself. In July 2006, the cabinet approved the amendments to the RTI Act,
seeking to exempt the ‘File notings’ from RTI.3 However, following public pressure,
these amendments were not introduced in the House. The government subsequently
clarified that file notings have to be disclosed under RTI.
2011 : Former Shiv Sena MP, Bhausaheb Wakchaure, proposed an amendment
during 2011 that sought to include reasons for seeking information as mandatory in a
RTI application. However, it was not fructified.
2013 CIC ORDER & PROPOSAL OF AMENDMENT
• In 2013, a full bench of the CIC delivered a historic judgment by declaring that all
national parties came under ‘public authorities’ and were within the purview of the
3
These file notings are recorded by civil servants, ministers and others on the file. Therefore, such notings
become an important part of the information to understand the rationale for a particular decision/action
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RTI Act. Accordingly, they were directed to designate central public information
officers (CPIOs) and the appellate authorities at their headquarters within six weeks.
• In 2013, The Right to Information (Amendment) Bill was introduced in Parliament
to keep political parties explicitly outside the purview of RTI that lapsed after the
dissolution of the 15th Lok Sabha. Notwithstanding the binding value of the CIC’s
order under Section 19(7) of the Act, none of the six political parties complied with
it. Quite interestingly, all the parties were absent from the hearing when the
commission issued show-cause notices for non-compliance at the hearing.
• Following the CIC order, an amendment was proposed in August 2013 to exclude
political parties from the ambit of RTI. This too did not materialize due to public
pressure.
CONCLUSION
• Finally, in 2019, a PIL was filed in the Supreme Court seeking a declaration of
political parties as ‘public authority’ and the matter is sub judice. Irrespective of the
ideological differences among these political parties on almost all the issues under
the sun, non-compliance of the RTI mandate has been a great unifier.
• The Law Commission opines that political parties are the lifeblood of our entire
constitutional system. Political parties act as a conduit through which interests and
issues of the people get represented in Parliament. Since elections are
predominantly contested on party lines in our parliamentary democratic polity, the
agenda of the potential government is set by them.
• As noted by Dr. B.R. Ambedkar in his famous Constituent Assembly speech, “The
working of a Constitution does not depend wholly upon the nature of the
Constitution. The Constitution can provide only the organs of State…The factors on
which the working of those organs of the State depend are the people and the
political parties they will set up as their instruments to carry out their wishes
and their politics.” It is hoped that the top court will further the positive advances
made in this direction. Since sunlight acts as the best disinfectant and our political
parties tirelessly claim themselves to be apostles of honesty and integrity, it is
expected that they would walk the talk.
Since this is a 2013 Question aspect of 2019 Amendment is not deliberately mentioned.
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UPSC No Question Asked
2012
UPSC A Central Government Medical Research institute in collaboration with an
2011 MNC used a drug on experimental basis on humans for curing cancer. Some of
the patients died due to this drug. In order to sue for compensation for such
victims and violation of right to privacy, Mr. X, a relative of a deceased patient
sought information through the instrumentality of Right to Information Act.
The information was refused on the ground that it affects the contracting
power of the Central Government with foreign companies and violates trade
secrets too. Decide.
Section 8(1)(d) of the RTI Act exempts information including commercial confidence,
trade secrets or intellectual property, the disclosure of which would harm the
competitive position of a third party.
To claim this exemption, it must be established that the information sought relates to
commercial or trade secrets, intellectual property or similar information. If the
information sought satisfies this condition, then it must be established that disclosure of
this information would result in harming the competitive position of a third party.
Gita Dewan Verma Vs. Additional Secretary (UD), Govt. of NCT Delhi4
“Any agreement entered into by the government is an agreement deemed to have been
entered into on behalf of the and in the interest of ‘We the people’. Hence if any citizen
wants to know the contents of such an agreement he is in the position of a principal
asking his agent to disclose to him the terms of the agreement entered into by the
agent on behalf of the principal. No agent can refuse to disclose any such
information to his principal,” the Central Information Commission (CIC) said in its
order dated 27 July 2009.
However this agreement cannot be disclosed when the information including
commercial confidence, trade secrets or intellectual property are involved.
4
Decision No. CIC /WB/A/2007/00830/SG/ 1286
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In the case of Central Board of Secondary Education & Anr. vs. Aditya Bandhopadhyay &
Ors., (2011) 8 SCC 497. In the said judgment, the Court held that indiscriminate and
impractical demands under the RTI Act for disclosure of all and sundry information
unrelated to transparency and accountability would be counterproductive as it will
adversely affect the efficiency of the administration and result in executive getting
bogged down with non-productive work of collecting and furnishing information.
Since it is an collaboration of Central Government Medical Research institute with an
MNC to use a drug on experimental basis on humans for curing cancer. The nitty-gritties
of this experimental research cannot be disclosed. However, Mr. X can file an petition
against government for compensation for the loss of his loved one under Article 32 of
the Constitution of India.
RTI ACT was not asked between UPSC 2000 to 2009.
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