The Supremacy of the RTI Act, 2005 Over Other Laws

When a citizen files an RTI application and a government department refuses to share information by citing some other law, can that refusal hold? The answer, under the Right to Information Act, 2005, is almost always no. Section 22 of the Act – titled “Act to have overriding effect” – ensures that when the RTI Act conflicts with any other law, the RTI Act wins. This single provision fundamentally altered the balance of power between citizens and the state, replacing a default culture of bureaucratic secrecy with one of legally enforceable transparency.

What Section 22 actually says 🔗

The text of Section 22 is direct: the provisions of the RTI 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. In plain terms, if any existing law – a statute, a rule, a regulation, a departmental manual – conflicts with the RTI Act regarding disclosure of information, the RTI Act takes precedence. The section even names the Official Secrets Act, 1923 explicitly, which was historically the government’s primary shield against disclosure.

Understanding the non-obstante clause 🔗

The legal mechanism that makes Section 22 so powerful is what jurists call a non-obstante clause – the phrase “notwithstanding anything inconsistent therewith.” This is a standard legislative drafting technique used to signal that one law overrides another in case of conflict. Non-obstante clauses appear in many Indian statutes, but few carry the democratic weight of the one in Section 22. It resolves legal conflicts by establishing a clear hierarchy: the RTI Act is at the top when it comes to the right of citizens to access information held by public authorities.

The clause covers a wide range of legal instruments. It applies to Acts of Parliament and State Legislatures, subordinate legislation such as rules and regulations framed under those Acts, administrative orders and notifications, and departmental circulars or manuals that have legal effect. No category of conflicting legal instrument is carved out. If it conflicts with the RTI Act on the subject of information disclosure, it is overridden.

Why this provision was necessary 🔗

Before the RTI Act came into force, secrecy was the default position of Indian governance. The Official Secrets Act, 1923 – a colonial-era legislation – criminalized the sharing of government information and operated on the premise that all official information was confidential unless explicitly cleared for release. Various other laws, regulations, and departmental procedures reinforced this culture. Public servants could cite any number of restrictions to refuse disclosure, and there was no clear legal framework compelling them to share.

The RTI Act reversed this presumption entirely. Transparency became the rule; secrecy became the exception. But this reversal would have been hollow if older laws could still be used as shields. Section 22 ensured that those shields were taken away. Public authorities could no longer hide behind the Official Secrets Act or departmental confidentiality rules to deny legitimate RTI requests. The Second Administrative Reforms Commission, in its report titled Right to Information: Master Key to Good Governance, went so far as to recommend that the Official Secrets Act be repealed – a recognition of how completely the RTI Act had superseded its function in the information disclosure domain.

How courts have interpreted Section 22 🔗

Indian courts have consistently upheld the supremacy of the RTI Act, building a substantial body of case law that reinforces what Section 22 says on paper.

CBSE v. Aditya Bandopadhyay (2011) 🔗

In this landmark Supreme Court judgment, students sought access to their evaluated answer books from the Central Board of Secondary Education. CBSE resisted, citing its own regulations and the confidential nature of the evaluation process. The Supreme Court affirmed that the RTI Act gives citizens the right to access information previously under the exclusive control of public authorities, and that the Act overrides earlier general laws and institutional rules. The result: students could now access their answer scripts under RTI.

Reserve Bank of India v. Jayantilal N. Mistry (2015) 🔗

The RBI had long resisted disclosing information about bank inspections and compliance reports, arguing that banking laws imposed confidentiality obligations. The Supreme Court rejected this argument, holding that the RTI Act’s disclosure requirements prevail over confidentiality provisions embedded in banking legislation. The Court also clarified that the RBI, as a public authority discharging regulatory functions in the public interest, cannot claim the protection of a fiduciary relationship with the banks it regulates.

Chief Information Commissioner v. High Court of Gujarat (2020) 🔗

This case examined whether High Court Rules framed under Article 225 of the Constitution could override the RTI Act. The Supreme Court held that the non-obstante clause in Section 22 of the RTI Act means that the Act prevails even over High Court Rules, at least in respect of administrative information. Requiring an applicant to state reasons for seeking information – something the High Court Rules mandated – was found to be inconsistent with Section 6(2) of the RTI Act, which explicitly says no applicant is required to give reasons for seeking information.

Section 22 and the Official Secrets Act: a direct confrontation 🔗

The relationship between the RTI Act and the Official Secrets Act, 1923 is probably the most significant area where Section 22 operates. The OSA is broad, vague, and was routinely used by officials to deny disclosures that had nothing to do with national security. RTI activists uncovering financial irregularities, corruption, or bureaucratic inefficiency would often be stonewalled on OSA grounds. Section 22 makes this untenable – whenever there is a conflict between the two laws, the RTI Act governs.

Section 8(2) of the RTI Act reinforces this further. Even where information is otherwise protected under the OSA or falls under one of the exemptions in Section 8(1), a public authority may allow access if the public interest in disclosure outweighs the harm to protected interests. This public interest override – sourced from Section 8(2) – gives decision-makers the legal authority to disclose sensitive information when the circumstances demand it, even under the shadow of OSA protections.

The real-world impact: transparency in governance 🔗

The overriding effect of the RTI Act has had tangible consequences for accountability in India. Several major exposés of corruption and misgovernance were enabled directly by RTI applications that succeeded despite initial refusals grounded in other laws. In the Adarsh Housing Society scam, officials initially cited the Official Secrets Act to refuse information about flat allocations to influential individuals. The RTI Act’s supremacy prevailed, the information was disclosed, and the scandal became public. Similarly, RTI applications played a central role in surfacing information during the 2G spectrum allocation controversy – a case where government decisions had been shielded by departmental confidentiality norms that could not withstand Section 22’s reach.

Beyond individual cases, the provision has shifted the institutional culture of public authorities. The knowledge that information cannot be withheld merely by citing some other law has incentivized better record-keeping, more transparent decision-making, and greater caution among public officials about how they exercise discretionary power. Citizens, journalists, activists, and researchers have all leveraged the Act’s overriding effect to hold the state accountable in ways that were structurally impossible before 2005.

Limits of the overriding effect 🔗

Section 22 does not mean the RTI Act overrides everything unconditionally. Its supremacy applies specifically where there is an inconsistency between the RTI Act and another law on the question of information disclosure. Where no such inconsistency exists – where another law actually provides its own disclosure mechanism – courts have sometimes allowed those mechanisms to coexist. The RTI Act also contains its own exemptions under Section 8(1), covering areas like national security, sovereignty, parliamentary privilege, fiduciary information, and personal privacy. These exemptions are carved out by the RTI Act itself and therefore do not represent a conflict – they represent the Act’s own internal limits on disclosure.

Additionally, certain intelligence and security organisations listed in the Second Schedule of the Act are excluded from its scope entirely, except in cases involving allegations of corruption or human rights violations. The overriding effect of Section 22 is therefore powerful but not absolute – it operates within the Act’s own carefully defined framework.

Significance for public accountability 🔗

The importance of Section 22 extends beyond legal technicality. It represents a philosophical commitment in Indian law: that citizens have a right to know how power is exercised on their behalf, and that this right cannot be quietly nullified by administrative convenience or older secrecy norms. By establishing the RTI Act’s supremacy, Parliament signalled that transparency is not a concession – it is a default. Public accountability is not optional; it is a structural feature of democratic governance.

For anyone working with or within public institutions – including co-operative societies that fall under the definition of public authority – understanding Section 22 means understanding that information obligations under the RTI Act cannot be dismissed by pointing to internal rules, bye-laws, or older legislative provisions. Where those instruments conflict with the RTI Act, they yield.

What do you think? Given that Section 22 gives the RTI Act supremacy over even long-standing laws like the Official Secrets Act, do you think this balance between transparency and legitimate state secrecy has been struck correctly in India? And with so many public institutions still resisting RTI requests on technical grounds, how should the law be strengthened to make Section 22’s overriding effect more effective in practice?

References

1. https://indiankanoon.org/doc/1971086/
2. https://www.drishtiias.com/daily-updates/daily-news-analysis/rti-vs-osa
3. https://www.casemine.com/search/in/section+22+rti+act
4. https://www.barandbench.com/columns/high-court-rules-under-article-225-vis-vis-rti-act-a-flawed-approach
5. https://indiankanoon.org/doc/758550/
6. https://www.aaptaxlaw.com/rti-act-2005/section-8-rti-act-2005-exemption-from-disclosure-of-information-sec-8-of-right-to-information-act-2005.html