4.1 LAW RELATING TO RIGHT TO INFORMATION
INTRODUCTIONS
Throughout the world, the right to information is seen by many as the Key to strengthening participatory democracy and ensuring more people centered development. In India also, the Government enacted Right to information (RTI) Act in 2005 allowing transparency and autonomy, and access to accountability in public authorities.
In R.P. Limited Indian Express Newspaper, the Supreme Court read into Article 21 the right to know. The Supreme Court held that right to know is a necessary ingredient of participatory democracy. Article 21 confers on all persons a right to know which include a right to receive information.
It may be pointed out that the right to impart and receiving information is a species of the right to freedom of speech and expression. Article 19(1) (a) of our Constitution guarantees to all citizens freedom of speech and expression. Right to freedom of speech and expression in Art. 19 (1) (a) carries with it the right to propagate and circulate one’s views and opinions subject to reasonable restrictions as mentioned under Article 19(2). The prerequisite for enjoying this right is knowledge and information.
The Right to Information Act, 2005 provides an effective an effective framework the right to information recognized under Article 19 of the Constitution.
DEFINITIONS
Public Authority [Sec. 2(h)]
“Public authority” means any authority or body or institution of self government established or constituted
¾ By or under the Constitution.
¾ By any other law made by Parliament.,
¾ By and other law made by State Legislature.
¾ By notification issued or order made by the appropriate Govt.
Record [Sec 2(1)]
“Record” includes.
(a) any document, manuscript and file;
(b) any microfilm, microfiche and facsimile copy of a document.
(c) any reproduction of image or images embodied in such microfilm; and (d) any other material produced by a computer or any other device.
Information [Sec 2(1)]
“Information” means any material in any form including records, documents, memos, e-mails, opinions, advices, press release, circulars, orders, logbooks, contracts, reports, samples, models, data materials held in any electronic form.
Right to Information [Sec. 2(i)]
“Right to information” means the right to information accessible under this Act with is held by or under the control of any public authority and includes the right to –
(i) taking notes, extracts, or certified copies of documents or records.
(ii) Inspection of work, documents, records.
(iii) Taking certified samples of materials.
(iv) Obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.
OBLIGATIONS OF PUBLIC AUTHORITY
Every public authority under the Act has been entrusted with a duty to maintain records and publish manuals, rules regulations, instructions, etc. in its possession as prescribed under the Act.
As per Sec.4, every public authority has to publish within 120 days of the enactment of this Act:
¾ The particulars of its organization functions and duties.
¾ The powers and duties of its officers and employees;
¾ The procedure followed in its decision making process, including channels of supervision and accountability.
¾ The norms set by it for the discharge of its functions;
¾ The rules, regulations instruction, manuals and records used by its employees for discharging its functions;
¾ A statement of the categories of the documents held by it or under its control;
¾ The particulars of any arrangement that exists for consultation with, or representation by the members of the public in relation to the formulation of policy or implementation thereof;
¾ A directory of its officers and employees;
¾ The monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations.
¾ The budget allocated to each of its agency, including the particulars of all plans, proposed expenditures and reports on disbursements made;
¾ The manner of execution of subsidy programmes, including the amounts allocated and the details and beneficiaries of such programmes:
¾ Particulars of recipients of concessions, permits or authorizations granted by it;
¾ Details of the information available to, or held by it, reduced in an electronic form;
¾ The particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use;
¾ The names, designations and other particulars of the public Information Officers,
¾ Such other information as may be prescribed; and thereafter update the publications every year.
DESIGNATION OF PUBLIC INFORMATION OFFICERS [PIO]
Every public authority has to do the following;
¾ Designate in all administrative units or officers Central or State Public Information Officers to provide information to persons who have made a request for the information;
and
¾ Designate at each sub – divisional level or sub – district level Central Assistant or State Assistant Public Information Officers to receive the applications for information or appeals or forwarding the same to the Central or State Public Information Officers.
PROCEDURE FOR OBTAINING INFORMATION
PIO shall deal with requests from persons seeking information. If the information requested for is held by another public authority; the PIO shall transfer, within 5 days, the request to that other public authority and inform the applicant immediately.
PIO, on receipt of a request shall as expeditiously as possible and in any case within 30 days of the receipt of the request, provide the information on payment of such fee as may be prescribed.
hours of the receipt of the request.
If the PIO fails to give decision on the request Where the information requested for concerns the life or liberty of a person, the same shall be provided within forty eight within the period specified, he shall be deemed to have refused the request.
Where a request has been rejected, the PIO shall communicate the following to the requester:
(i) the reasons for such rejection;
(ii) the period within which an appeal against such rejection may be preferred; and (iii) the particulars of the Appellate Authority.
EXEMPTION FROM DISCLOSURE
Certain categories of information have been exempted from disclosure under the Act. These are;
¾ Where disclosure prejudicially affects the sovereignty and integrity of India;
¾ Information which has been expressly forbidden by any court or tribunal or the disclosure of which may constitute contempt of court:
¾ Where disclosure would cause a breach of privilege of parliament or the state legislature;
¾ Information including commercial confidence, trade secrets or intellectual property.
¾ Information received in confidence from a foreign government;
¾ Information the disclosure of which endangers life or physical safety of any person or identifies confident source of information or assistance;
¾ Information that would impede the process of investigation or apprehension or prosecution of offenders;
¾ Cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers before the decisions are taken.
Section 8 provides that personal information which would cause invasion of the privacy unless larger public interest justifies it, shall not disclosed
Section 9 empowers the Public Information Officer to reject a request for information where an infringement of a copyright subsisting in a person would be involved.
It may be noted that as per Section 10 of the RTI Act, only that part of the record, which does not contain any information which is exempt from disclosure and which can reasonably be severed from any part that contains exempt information, may be provided. This is known as partial disclosure.
WHO IS EXCLUDED?
The Act excludes Central Intelligence and Security agencies specified in the Second Schedule like IB, R & AW, Directorate of Revenue Intelligence, Central Economic Intelligence Bureau, Directorate of Enforcement, Narcotics Control Bureaus, Aviation Research Centre, Special Frontier Force, BSF, and Nicobar, the Crime Branch – CID – CB; Dadra and Nagar Haveli and Special Branch, Lakshadweep Police, Agencies specified by the State Governments through a Notification will also be excluded.
The exclusion, however, is not absolute and these organization have an obligation to provide information pertaining to allegations of corruption and human rights violations. Further, information relating to allegations of human rights violation shall be given only with the approval of the Central Information Commission within forty – five days from the date of the receipt of request. [Section 24]
INFORMATION COMMISSIONS Central Information Commission (CIC)
The Central Information Commission is to be constituted by the Central Government through a Gazette Notification. The Central Information Commission consists of the Chief Central Information Commissioner and Central Information Commission not exceeding 10.
The Chief Information Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science technology, social service, management, journalism, mass media or administration and governance. CIC/IC shall not be a Member of Parliament or Member of the Legislature of any State or Union Territory.
He shall not hold – any other office of profit or connected with any political party or carrying on any business or pursuing any prolession.
CIC shall be appointed for a term of 5 years or till he attains the age of 65 years, whichever is earlier. CIC is not eligible for reappointment.
State Information Commission (SIC)
The State Information Commission will be constituted by the state Government through a Gazette notification. The State Information Commission consists of one State. Chief Information Commissioner (SCIC) and not more that 10 State Information Commissioners (SIC). The qualification for appointment as SCIC/SIC shall be the same as that for Central Commissioners.
Powers of Information Commission
The Central Information Commission Information Commission has a duty to receive complaints from any person.
¾ Who has not been able to submit an information request because a PIO has not been appointed;
¾ Who has been refused information that was requested.
¾ Who has received no response to his / her information request within the specified time limits;
¾ Who thinks the fees charged are unreasonable;
¾ Who thinks information given is incomplete or false or misleading; and
¾ Any other matter relating to obtaining information under this law.
If the Commission feels satisfied, an enquiry may be initiated and while initiating an enquiry the Commission has same powers as vested in a Civil Court.
The Central Information Commission or the State Information Commission during the inquiry of any complaint under this Act may examine any record which is under the control of the public authority, and no such record may be withheld from it on any grounds.
APELLATE AUTHORITIES
Any person who does not receive a decision within the specified time or is aggrieved by a decision of the PIO may file an appeal under the Act.
First Appeal
First appeal shall be filed to the officer senior in rank to the PIO in the concerned Public Authority within 30 days, from the expiry of the prescribed time limit for providing the information or from the receipt of the decision. However, the Appellate Authority may entertain the appeal even after the expiry of the aforesaid 30 days, if it is satisfied that the Appellant has been prevented by sufficient cause from filing the appeal within the prescribed period of 30 days.
First Appeal shall be disposed of within 30 days from the date of its receipt or within such extended period not exceeding a total of forty – five days from the date of filing thereof, for reasons to be recorded in writing.
Second Appeal
Second appeal shall be filed to the Central Information Commission or the State Information Commission, as the case may be, within 90 days of the date on which the decision was given or should have been made by the First Appellate Authority. However, the Appellate Authority may entertain the appeal even after the expiry of the aforesaid 90 days, if it is satisfied that the Appellant has been prevented by sufficient cause from filling the appeal within the prescribed period of 90 days.
4.2 COMPETITION ACT, 2002
INTRODUCTION / REASONS FOR REPEAL OF MRTP ACT, 1969
MRTP Act, 1969 has become obsolete in certain areas in the light to international economic developments relating to competition laws. So the need was felt to shift the focus from curbing monopolies to promoting competition. Hence, the Competition Act, 2002 was enacted, which aims at doing away from the rigidly structured MRTP Act, 1969.
The Competition Act, 2002 is flexible, behavior oriented and also explicitly indicates the parameters which shall be kept in view while deciding the adverse effect on competition, abuse of dominance and prejudicial combinations. The main purpose of the Act is to ensure free and fair competition in the market.
SALIENT/IMPORTANT REATURES OF THE ACT
1) The Competition Act, 2002 has been enacted to prevent practices having an appreciable adverse effect on competition, to promote and sustain competition in the market and to protect the interest of consumers and to ensure freedom of trade.
2) With the enforcement of the Competition Act, 2002 the MRTP Act, 1969 shall stand repeated and the MRTP Commission shall be dissolved.
3) The Competition Act, 2002 seeks to achieve its objectives by prohibiting anti – competitive trade agreements, preventing abuse of dominance, regulating combinations and formulating a policy on competition, creating awareness by imparting training on competition issues.
4) The Competition Act, 2002 provides for the establishment of Competition Commission of India and prescribes its duties, functions and powers.
IMPORTANT DEFINITIONS [SECTION 2]
Agreement
Agreement includes any arrangement or understanding or action in concert –
a) Whether or not, such agreement, understanding or action is formal or in writing or b) Whether or not, such agreement, understanding or action is intended to be
enforceable by legal proceedings.
Cartel
Cartel includes an association of producers, sellers or distributors, traders or service providers who, by agreement amongst themselves, limit, control, or attempt to control the production, distribution, sale or price of goods or services or, trade in goods provision of services.
The Competition Act, 2002 prohibits formation of certain cartels.
Consumer
Consumer means any persons who –
(i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under my system of deferred payment and includes any person who uses those goods with the approval of the person buying those goods, whether such purchase of goods is for resale or for commercial purpose or for personal use:
(ii) Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any person who is the beneficiary of those services with the approval of hirer or avail or of those services, whether such hiring or availing of services is for any commercial purpose or for personal use.
It may be noted that under the competition Act, 2002 even if a person purchases goods or avails of services for commercial purpose. he’ll be a consumer, whereas for the purpose of consumer Protection Act, 1986 a person purchasing goods or availing services for commercial purposes is not a consumer and cannot seek relief under that Act.
Enterprise
Enterprise means a person or department of the Government, who or which is, or has been engaged in any activity, relating to the production, storage , supply, distribution, acquisition or control of articles or goods or the provision of services of any kind.
Goods
Goods means goods as defined in the Sale of Goods Act, 1930 and include the following:
(i) Products manufactured processed or mined:
(ii) Debentures, shares and stocks after allotment;
(iii) In relation to ‘goods supplied’, goods imported in India Services
Services means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport storage material treatment processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, constructions, repair conveying of news or information and advertising.
It may be noted that under the Competition Act, 2002 the services of industrial or commercial nature also fall within the scope of the Act, whereas under the Consumer Protection Act, 1986 the services of commercial nature or for business or industrial purposes are excluded for interpreting deficiency in the supply of any service.
Relevant Market, Relevant Geographic Market, and Relevant Product Market
The turns Relevant Market, Relevant Geographic Market, and Relevant Product Market have relevance in determination of the agreements being anti – competitive within the meaning, of Section 3 of the Competition Act, 2002.
Relevant Market means the market, which may be determined by the Competition Commission of India with reference to both the markets [Section 2(1)].
Relevant Geographic Market means a market comprising the area in which the conditions of competition for supply of goods or provision of services or demand of goods or services are distinctly homogeneous. Can be distinguished from conditions prevailing in neighboring areas [Section 2(s)]
Relevant Product Market means a market comprising of all those products or services, which are regarded as interchangeable or substitutable by the consumer, by reasons of characteristics of products or services, their prices and intended use [Section 2(1)]
IMPORTANT PROVISIONS Anti – competitive Agreements
Section 3(1) of the Competition Act, 2002 provides that no enterprise or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition. Section 3(2) further provides that any anti competitive agreement within the meaning of section 3(1) shall be void.
Prohibition on Agreements having Appreciable Adverse Effect on Competition
The following agreements shall be deemed to be prohibited under section 3(1), if such agreements cause or are likely to cause an appreciable adverse effect on competition.
a) Tie – in arrangement, i.e. an agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods.
b) Exclusive supply agreement, i.e. an agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person.
c) Exclusive distribution agreement i.e. an agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal or sale of the goods.
d) Refusal to deal i..e., an agreement which restricts, or is likely to restrict, by any method the person or classes of persons to whom goods are sold or from whom goods are bought.
e) Resale price maintenance i.e., an agreement to sell goods on condition that the prices to be charged on the resale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those prices may be charged.
Important Factors while determining whether as agreement has an ‘appreciable adverse effect’ on competition.
Section 19(3) of the competition Act, 2002 provides that while determining whether as agreement has appreciable adverse effect on competition, the Commission shall give due regard to all or any of the following factors, namely –
a) Creation of barriers to new entrants in the market;
b) Driving existing competitors out of the market;