PIL seeks clarity on whether pre-existing laws override RTI

Economic Times: New Delhi: Thursday, 07 August 2014.

What happens when the Right to Information Act clashes with other information dispensation mechanisms coded in other preexisting laws such as Patents Act and Companies Act?

A public interest litigation (PIL) filed in the Delhi High Court has sought clarity on this grey area, while alleging that several government arms are misusing it to frustrate right to information (RTI) seekers and conceal information, which they should be readily sharing under the transparency law.

Shamnad Basheer, a patent expert, filed the petition. Appearing in support of the petition, Salman Khurshid, a former law minister under the UPA regime, sought clarity from the court on whether the pre-existing laws override RTI Act when it comes to gleaning information from the government.

The court admitted the matter on Wednesday and sent out notice to the government seeking its response. Basheer had sought information under RTI on the level to which pharmaceutical companies are commercialising the patents they hold particularly in critical and chronic diseases such as cancer, AIDS, diabetes and Hepatitis. All patent holders are mandated to file this sort of information with the patent office annually in a prescribed format.

In fact, the patent office has uploaded part of such information on its website, which Basheer alleged was only for the years 2012 and 2013. In his petition, Bashir alleged that the patent office in New Delhi rejected his application citing the information dispensation mechanism in the Patents Act, while patent offices in Mumbai and Kolkata had accepted his application under RTI Act and furnished information under Patents Act.

Now, this poses two big challenges for the information seeker. First, the Patents Act only offers access to limited set of information, much lesser that what can be gleaned through the RTI Act. Second, procuring information through Patents Act can be exorbitantly expensive.

For instance, in 2010, the patent office demanded a fee of Rs 1,04,000 for supplying certified copies of 26 documents, at Rs 4,000 per document. Basheer, a regular RTI filer, said that in some cases, seeking information under pre-existing laws can prove to be 100 times dearer than getting the same information through RTI. RTI activists say it should be left to an information seeker to decide through which route to proceed.

"The choice of seeking information whether under the RTI or the specific legislation lies with the citizen and rules for providing information should be applied depending on the Act under which the applicant requests," said CJ Karira, an RTI expert based in Hyderabad.

Right to information is a fundamental right and a citizen cannot be forced to choose the route, he added. RTI applicants also complain that pre-existing laws drastically cut the amount of information one can ask for.

For example, Basheer's PIL said the patents law doesn't allow access to the patent examiner's report, which is a critical document in deciding whether and why a patent is valid. This when the Indian Patent Act allows opposition to a patent before and after it is granted.

"Without adequate disclosure and access to patent information, third parties will find it difficult to mount such challenges and prevent the imposition on unwarranted 20-year monopolies on society," it said.

What Basheer is seeking from the patent office is exactly the sort of information pharmaceutical multinationals do not want leaked from Indian patent office. They fear that once in the hands of proactive public health activists, it can be used as a weapon to seek compulsory licences on the condition that they are holding onto patents and not adequately commercializing. This will endanger their monopolies.

Similarly, while the Companies Act allows access limited information on companies registered under the Companies Act, it doesn't entertain any queries on the comments or decisions that Registrar of Companies make on any companies.

Also, most of the older laws do not prescribe any timelines to give away information, unlike the RTI Act where the authorities must furnish information within 30 days or face penalty. Pre-existing laws also lack clear grievance-redressal mechanism for information seekers in case they have been shortchanged by officials.