What are the Fundamental Rights of a mentally retarded child? - The CIC is anguished at mechanical manner in which the RTI application has been dealt with - An organ of the executive is expected to be aware about the basic functions of another organ
Since both identical appeals emanate from a single RTI application dated 12.10.2014; they are clubbed together to avoid multiplicity of proceedings.
Information sought & background of the appeals:
Vide online RTI application dated 11.03.2015, the appellant sought following information:
“What are the Fundamental Rights of Master S. Dharanisurya, aged 15 years, S/o V. Senthil Kumar, Residing at 12/165, Balaji Nagar, B.U. Post, Vadavalli, Coimbatore 641046 who is diagnosed to have:
A. Unspecified level of mental retardation.
B. Behaviour Problems
C. Attention deficit & Hyperactive disorder
D. Autistic features”
Though the online RTI request was originally filed with the President Secretariat, it was transferred to Department of Health & Family welfare on 12.03.2016. However, the Dept. of Health & Family welfare returned the RTI application to appellant on 16.03.2015 with the following remarks:
“As mentioned in the guidelines for the use of this portal, this facility is not available for filing RTI applications for the public authorities under the State Governments, including Government of NCT Delhi. Since your RTI application is meant for a public authority under the State Government, the same is returned herewith. You may file the same before the concerned public authority under the State Government”
The appellant preferred first appeal on 16.03.2015, but the same was also returned to the appellant reiterating the reply of CPIO. Feeling aggrieved the appellant filed present appeals before the Commission.
Relevant facts emerging during hearing:
The appellant is absent. Respondent is present and heard. At the outset, Shri Nayal, in all fairness concedes that the RTI applications were inadvertently returned to the appellant under a mistaken belief that the same pertained to concerned state government. He submits that the matter was reexamined after receipt of notice for hearing from the Commission and consequently, it was felt to take advice from the Department of Legal affairs on 18.03.2016. He places a copy of O.M. dated 21.03.2016 received as opinion from the respondent. Relevant extracts are reproduced hereinafter:
“The undersigned is directed to M/o Health & Family Welfare’s OM No. A60011/ 04/216RTI Cell dated 18.03.2016 on the subject mentioned above and to say that as per the Govt. of India (Allocation of Business) Rules, 1961, the basic function of this Department is to, interalia, tender advice to Ministries/ Departments on legal matters only. Further, the information sought by Shri Senthil Kumar vide his online RTI applications dated 12.03.2015, are in nature of queries amounting to seeking legal advice and hence, the same are not covered within the ambit of the definition of ‘information’ as given under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act, 2005. Moreover, this Department does not give legal advice to private individuals.
2. It is further informed that this Department has also received an identical online RTI application No. MOLAW/R/2015/80104’ dated 11.03.2016 (copy enclosed) of Shri V. Senthil Kumar. The RTI application was transferred to the Legislative Department on 24.03.2015 for appropriate action.
Public Information Officer”
After hearing the respondent and perusal of record, the Commission is anguished at mechanical manner in which the present RTI application has been dealt with. There was no application of mind in dealing with the RTI query. Moreover an organ of the executive is expected to be aware about the basic functions of another organ. The CPIO is directed to forward forthwith a copy of the present RTI to CPIO, Department of Disability affairs, Ministry of Social Justice & Empowerment, Govt. of India within seven days of receipt of this order. The information sought shall be furnished free of cost to the appellant by the Dept. of Disability within 14 days of the receipt of the RTI application. The registry of this bench is directed to place a copy of this order before the Secretary, Ministry of Health & Family Welfare for taking note of the shoddy manner in which this RTI application has been handled and to take appropriate action in the matter. The appeals are allowed in aforesaid terms.
Citation: Shri V.Senthil Kumar v. Ministry of Health & Family Welfare in F. No.CIC/YA/A/2015/900937 F. No.CIC/YA/A/2015/900947