Regular readers of this blog are probably very familiar with the spate of posts covered here relating to the Right to Information (RTI) Act, and applications made before various IP offices in connection with the same. Some of my co-bloggers, notably Prashant Reddy, have achieved considerable success in obtaining information from the offices (which anyway ought to have been in the public domain).
Our guest post today, by Sai Vinod Nayani, our ‘regular’ guest blogger, and a fourth year student of NUJS, debates on recent responses by the various offices where such requests for information were rejected, on grounds that there were alternate rules that allowed such requests. Sai discusses the legality of the RTI in context of alternate rules, and whether such rejections are lawful. (Image from here.)
Denial of Public Information by IP Offices under the RTI Act
by Sai Vinod Nayani
The CPIO of the Patent Office at Chennai rejected an RTI request seeking information relating to a patent application under Section 153 of the Patents Act, 1970 and rules made thereunder which laid down the procedure for obtaining information. In light of the recent CIC order in R. S. Mishra v. CPIO, Supreme Court of India delivered this May, the CPIO appears to have erred when it ordered applicants approaching through the RTI Act to make a request under various provisions of the Patents Rules, 2003 for obtaining information. The CIC has held that a PIO cannot refuse disclosure of information under the RTI Act citing pre-existing provisions under any other law. Prior to the enactment of the RTI Act, certain legislations and rules provided mechanisms for obtaining information. At times, however, access to such information was privileged and stifled by bureaucracy. The RTI Act entitled individuals to easy access to information for a token fee, while the penalties for non-disclosure under the Act ensured time bound delivery of information.
In spite of this, the Patent Office and the Copyright Office continue to impose fees for inspecting public documents under rules other than ones framed under the RTI Act. While an extract from the Register of Copyright costs Rs. 20 per work, an inspection of the Register of Designs costs Rs. 250. An inspection of published patent documents can be done for a fee of Rs. 200 in addition to Rs. 4 per page for a photocopy. On the other hand, the RTI (Regulation of Fee and Cost) Rules, 2005 require a mere Rs. 10 for filing a request, while no fee is collected for inspection of public documents for the first one hour. It is outrageous that the Indian IP Offices continue to provide public information at a very high premium.
The Supreme Court’s CPIO refused information relating to judicial records under the RTI Act on the ground that the Supreme Court Rules, 1966 already made provisions for obtaining such information. Few other instances have been reported where the PIOs have refused information under the RTI Act in the presence of alternative rules. Overruling the CPIO’s order, the above CIC order observed that “it is the citizen’s prerogative to decide under which mechanism i.e. under the method prescribed by the public authority or the RTI Act, he/she would like to obtain the information”.
Legality of the RTI Act in the Presence of Similar Special Rules
The CIC, in overruling one of its previous orders, took assistance from Section 22 of the Act which reads:
Act to have overriding effect: The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. (emphasis added)
It is a well settled principle of law that the legislative intent behind the insertion of non-obstante clause in any provision is to give effect to that provision over and above any other contrary provision. It implies that the operation of the provision is not impeded by any other rule. Moreover, a special rule is not abrogated by a later rule expressed in general terms without any clear inconsistency between the two. The CIC order discussed the maxim generalia specialibus non derogant (general things do not derogate from special things). According to this maxim, it is not the legislative intent to make a general rule interfere with an earlier special enactment. The special rules cannot be deemed to be repealed by implication unless there is any inconsistency which cannot be reconciled.
Rule 27 of the Patent Rules, 2003 provides for inspection of published patent applications. This provision, in substance, is similar to right to inspection of public documents under the RTI Act. Therefore, there is no inherent inconsistency between the special rule and the RTI Act. The validity of the special rule, however, cannot exclude the application of the RTI Act. With the operation of the non-obstante clause, a PIO cannot refuse information under the RTI Act unless it falls under the exemptions laid down under Sections 8 and 9.
The IP Offices under this pretext are denying information to citizens. The RTI Act has the advantage of an elaborate procedure for obtaining information and an appellate mechanism for grievance redressal. Additionally, the fee charged under the RTI Act is only for the purpose of providing information i.e. inspection or making copies of the public information and for no other costs incurred including any expenses over collecting information. Therefore, the continuing application of special rules despite the presence of the RTI Act, goes against the spirit of the constitutional guarantee of right to information.
21 thoughts on “SpicyIP Guest Post: Denial of Public Information by IP Offices under RTI Act”
It seems that Sumathi has not got any response from CPIO at all as such she has also not written any content. The title is sufficient enough from which one can understand the plight of the RTI applications filed with CPIO (TM Office, Delhi). Ha Ha.
It is known that CPIO has not been replying to the RTI applications and even the First Appellate Authority has been in hand in glove with CPIO as such the First Appellate Authority has been disposing off the First Appeals by stating that the CPIO has been busy in administrative work and has been asked to give the information called for in short time, which short time never happens. This is what has been stated in various other blogs earlier published. In one case the CPIO has been put to maximum penalty imposable under the RTI Act (Rs25000/-).
It has been noticed as follows:
1. The date of your blogs now-a-days reads one while when the blog is opened for reading it gives the other date.
2. When one tries to post a comment then at the first instance the word verification does not appear and one has to close the window to open it again. Then the word verification option appears. Only then one can post the comment.
3. Sumathi has forgotten to write the matter of blog. She has not carred for that even after 3 comments. However, when you search to “articles you may like” in it gives the opening lines of the blog which actually do not appear on the blog. The said opening lines read as “CPIO, Supreme Court of India delivered this May, the CPIO appears to have erred when it ordered applicants approaching through the RTI Act to make a request under various provisions of the Patents Rules, 2003 for obtaining information.”
This is a very useful information. The link to the Supreme Court judgment may kindly be provided.
Anon – I have read your comments, but have not replied because I cannot for the life of me understand what you are trying to say! Due to your cryptic language, which I am unable to comprehend (I am clearly gifted with less skills than yourself), I would request you to please rephrase your comments in a language I understand.
However, I shall try to address whatever I can make out from your comments, which appear to relate to technical issues of the blog more than anything else —
1. Content – I don’t know what you mean by there being no content in the post? Are you not receiving any content in your mailbox, or are you unable to view content on the blogsite? I have had no problems in receiving the post in my mailbox, or in reading it on the site. Please do let me know if you mean something else by this comment.
2. Comments – the word verification option is something that google/blogger provides – it is not something we as bloggers have control over. I have so far had no trouble in inserting comments.
3. The link to the CPIO order is provided. Please read the blog post again.
In case you have more technical issues with the blog or this particular post, I would request you to please be a little more clear in your concerns, so that I can address the same.
Thanks and regards
Monday, December 05, 2011
SpicyIP Guest Post: Denial of Public Information by IP Offices under RTI Act
Posted by Sumathi Chandrashekaran at 2:47 PM
Labels: Copyright, Patent, Patent Office, Patent rules
Above has been copy pasted from the blog page. Of course the image cannot come in this comment. I have started my cursor from the word “Monday …………. to 5 comments” as copy pasted above to show that no matter of blog is appearing whenever I have opened this blog. I am not receiving any content in the mailbox as such I am unable to view content on the blogsite
It seems that it is not only with me but with Anonymous as 5.28pm and Also K. Muthu Selvam AND AGAIN anonymous at 7.55 pm. There was nothing that you got so much annoyed and used this kind of language that you have written and have even undermined yourself being gifted with less skills. I have been reading the blogs regularly. I know you write good posts. But if there is some problem then it should be faced bravely.
Now see if one copies the blog from “Monay ….. to 5 comments” and copy past in word document, then the contents of blog do appear. BUT THEN it is not expected from each of the readers to do it. Even I could get this only when I experimented as everything could not be copied from the blog so that I could have pasted.
I hope that I have written very simple language and you have understood.
Anon – thanks for clarifying. This explains it much better. I repeat, I am able to see this post very clearly on the blog website, as well as in my inbox, as I respond to your comment. I honestly don’t know what the problem is.
However, I shall hazard a guess and suggest, as I originally did, that this is a technical issue. I can only offer to re-post the note for your benefit, as I have just now.
If you continue to have trouble, please let me know if this is a problem only with this particular post, or with posts generally on the website, or posts on a particular day, as the case may be.
This constant maligning of the IP Office by Spicy IP is highly condemnable. Please understand that the IP office suffers from a shortage of manpower. I have received replies to RTI applications from the IP Office. I am grateful that they had the time to reply to my application despite having so much work pressure.
Please stop targeting the IP Office and look at the law firms. The amount of corruption there is disgusting. These law firms do not even have to reply to RTI applications! There is 100 times more corruption in the law firms. Why you don’t look at corruption in the private sector? Hypocrisy to the utmost.
Hi Supporter of IP Office –
Before anything else, I must point out that I am not the author of the post above, but only one who posted it. However, you raise some interesting questions —
1. Understaffed IP office: no one denies that the IP Office is understaffed/has limited resources, etc. But the purpose of a lot of the commentary/criticism levelled against the Office is so that someone with the ability to change the system actually makes amends, and reverses the resource crunch the Office faces. Unless someone points out these problems, and the implications it has, it is likely that the status quo may remain precisely that.
2. On corruption and law firms/’the private sector’ – If by this you mean that law firms are party to corruption at the IP Offices, I think I would be the last person to deny that. However, you will also appreciate that the statutory system we have facilitates an accountability structure where the government/the executive is primarily responsible for corrupt practices, and private parties are deemed only secondary participants. Playing within such statutory design, it is inevitable to have discussions bent towards assessing government culpability. It is also far far easier to obtain information which support such discussion. In comparison, it is very difficult to obtain information about the culpability of law firms – for this, we rely hugely on support from individuals such as yourselves. Wherever possible, we have encouraged discussion on such issues as well.
That said, this post was not so much about corruption than about differing interpretations of a point of law, which intersected with a request for information related to IP. Perhaps that is something you could offer your comments on as well?
Thanks and regards
As rightly stated by Anon (2.47pm), the blog can be read only when copied and pasted on a MS Word.
Sumathi if as “guessed” by you the problem is of a technical nature and the empty blog has been pointed out by followers of spicyip…..the snag should have been manded considering the blog is dated 05.12.2011.
Anyways not entirely your fault.
But you need not be so offended as the comment made by Anon at 12.01pm makes sense.
Posted by Anon 5.28pm
Not sure why some of the readers are having problems reading this post! I managed to read it fine enough as well as post this comment without any hitch. Assuming some are indeed having problems, this seems a weird inexplicable glitch on the part of the Blogger!
To those who haven’t been able to see the contents of this post, I’ve found that I’m able to view the post normally when I use the Mozilla Firefox browser, or the Chrome browser, but am NOT able to view it when I use Internet Explorer or Safari.
This must be some glitch by blogspot. We’ll notify them about it, but in the mean time, you can try using Chrome or Firefox and check if you can then view the post.
Thank you for your comments. I cannot see the post so I did not respond to that. I just saw the subject and responded.
Thank you for accepting there is corruption in the law firms and all the fault is not with the public sector. The last time someone raised that not only was the question totally avoided but the young boy from Spicy IP began acting cocky. Maybe he loves law firms a lot.
Dear Supporter of IP Office,
It seems that your works are being done by the IP Office. Whosoever I have spoken INVARIABLY each of the persons have shown anguish over the working of IP Office particularly in Delhi. I do not know whether you are from Delhi or other jurisdiction. PLEASE NOTE that the IP Office at Delhi has I can use the phrase as “gone to the dogs”. We as public have nothing to do with the alibi that there is staff shortage. The question is that I pay Rs3500/- for TM-1, I must get the delivery of services. Do you know that the hard copy of Additional representation is being received after three full months. What has the office to do for it, that office takes three months? The application number is generated by the computer. Why cant the cash people give the Additional Representation with the number allotted on the spot or at the most in a few days? This used to be done earlier.
For renewal, what has the office to do? Why cant they issue the renewal certificate on the spot or at the most in a few days?
Why are they not serving TM-5 and TM-6 within the period of 3 months of its receipt. Are you aware that as per Rules they have to serve within that period? Do you know that some TM-5 and TM-6 filed as back as in 2004 are also still pending to be served?
How many marks are being published now-a-days and WHY. Do you want to say that these number of applications are being filed? Do you know that post registration requests pending for more than a decade?
In fact tell me what is being done by the office these days except keeping all the papers with them with the hope that some one some day will reply to the same from office. Office now-a-days boasts about digitization of the records. What do we do with the digitization, if you do not consider that letter which is called as “PUC”.
These are only a few gray areas that I have pointed out. A thesis can be written. There has to be consciousness and willingness to work and not take shelter in the alibi of “short staff”.
Dear Mr. supporter of IP Office,
Let me add to what anon 8.45 has stated.
Are you aware that more that 44000/- of the IP Office files are missing? In fact this is the figure pertaining to the files of registered trade marks. What about the opposition and pending applications.
What do you have to say. In fact I think you are an employee of IP Office. Right?
This I am saying which I guess from the allegations that you have made against law firms. I ask you. Does RTI Act apply to Law Firms? What corruption you are talking about. Can there be any corruption in private office. Perhaps you do not know the definition of corruption. Perhaps Sumathi also does not know the definition of corruption, when she agrees to the corruption in law firms. If a law firm charges exorbitantly to clients, can that be called corruption? Or what kind of corruption you are talking about. Would you please explain what kind of corruption is there in law firms.
Anon at 10.35 — please re-read my comment, where I say “If by this you mean that law firms are party to corruption at the IP Offices…”
I think it’s foolish to attempt to argue that corruption has *only* a one way existence. Government offices, IPO included, are corrupt in some measure because private parties engage with them on those terms. There may be unequal distribution of power between government and private parties which affect the nature of that engagement (and I can think of many responses to that line of argument), but it would be difficult to deny the role played by private players in corruption, including law firms.
I cannot believe you think 3 months to get additional representation sheet is too long and you want a renewal certificate on the spot. In which country does this happen? Please remember India is a developing country. If you want service like America please pay fees like America and please tell the government to have more staff and pay them American salaries. Maybe we can have a system where a person wanting documents quickly should pay a “tatkal” fee of Rs 1 lakh. That is a possible solution.
Who says there is no corruption in private sector? You If you pay a bribe to a government official or court official is that not corruption? If you file false documents is that not corruption? If you give expensive gifts to IAS officers is that not corruption? It is hilarious to see law firm employees giving lectures on corruption. In government offices even the recruitment procedure is transparent and subject to RTI. It is totally fair and not contacts-based like law firms.
The Indian government is doing whatever it can to stop corruption. There is the RTI Act and a Lokpal bill wil come soon. Also, a circular has been issued asking people not to go through touts and pay bribes at the IP Office. Has the law council of india ever issued a circular warning law firms not to pay bribes?
Dear Supporter of IP Office,
From the language you have used, you definitely are an employee of IP Office. You have stated that giving of additional representation in three months is not too long. How much time do you think you need to issue the Additional Representation when the computer has generated the application number and the status is also created for the said application there and then.
And in renewal what have you to do except making entry in he register. You in any case are accepting the renewal fee only when you are satisfied at the cash counter that the renewal fee is due and that the entries of the mark are there in the computer date system. Remember you are merely a Registrar and you have only to make entries in the Register. Why do you take so much time for renewal?
Look you are getting the salaries as American get. See the price of things there and the price of things here in India. Compare the ratio. The percentage of the salaries spent there and here. It is alright. Is it your aim to discourage the TM Owners to get the marks renewed by charging Rs1/- Lakh or is it that you want people not to file the renewal applications so that you have lesser of the work. We are citizens and we cannot ask Government to increase the staff. It is the Government who is to think or the Government thinks that the staff that it has kept is sufficient, but you the employees do not want to work. The citizens want work for the payments they make for registration or renewal or anything of the sort.
You have deliberately kept away from replying the other points raised by Anon @8.45AM. Why have you not served TM-5 and TM-6 for so many years. Do you want people should approach you for servicing so that the matters are decided and the marks are registered. Why have you kept with you the papers pertaining to post registration for more than a decade. Another point has been raised with respect to PUC. Is I correct that you people do not reply to PUC.
In so far as corruption is concerned it would be relevant only when some Government official is involved. Otherwise there is no relevance of the word corruption.
Someone give this guy a prize for ignorance. According to your definition the following people cannot be accused of corruption:
– Ramalinga Raju
– Raj Rajaratnam
– Nira Radia
– Swan Telecom
etc etc etc
– Legal world: RK Anand (BMW case), many other lawyers including the law firms all of you work for
Mr. [email protected]
It seems that now you have stopped calling your self as supporter of IP Office. Now you are completely anonymous as you have no answers to the questions raised by [email protected].
Please confirm that you are an employee of TM/IP Office and if you have courage then disclose your name. However, if you do not have courage to disclose your name at least answer the points raised with respect to TM-5, TM-6 and other various issues raised above.
can any body give the final order in case of RS Misra vs Supreme court of india, whether RTI section 22 or SC rules will prevail while seeking information. the order should be after when delhi court stayed the CIC order of 11/5/11 some time in june 2011. rgds. [email protected]