The apex court’s order would be a major setback for transparency and democracy in India and would dilute the RTI Act more seriously
The Supreme Court has recently given an order imposing costs of Rs1 lakh on the Karnataka Information Commissioner for what it calls a frivolous litigation. This has serious implications on the Right to Information (RTI), which may be more damaging than the amendments that were stalled by citizens remonstrating.
The facts are as follows: The Commission had approached the Supreme Court against an order by the Karnataka High Court quashing its order. This case has far-reaching implications for the citizen’s fundamental right which has been codified in the RTI Act. An applicant had filed for information from the Karnataka High Court under the RTI Act. The Public Information Officer (PIO) of the court had refused the information on the grounds that the citizen must seek information under the Karnataka High Court rules.
As per the RTI Act, refusal of information can only be under the provisions of Section 8 and 9. The State Information Commission did not agree with the PIO and asked him to provide the information under the RTI Act. The Karnataka High Court had named the applicant as a respondent in the case and quashed the Commission’s order.
The Commission sought to contest this order before the Supreme Court and the petition was filed by an Information Commissioner. The court has taken umbrage to the petition being filed by an Information Commissioner and has said that the Commission and Commissioner have no locus and are wasting public money by challenging the order.
I believe that a very important point of law was involved, which has not been addressed by either the high court or the Supreme Court. Section 22 of the RTI Act expressly provides that 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 the RTI Act.
In other words, where there is any inconsistency in a law as regards furnishing of information, such law shall be superseded by the RTI Act. Insertion of a non-obstante clause in Section 22 of the RTI Act was a conscious choice of the Parliament to safeguard the citizens’ fundamental right to information from convoluted interpretations of other laws and rules adopted by public authorities to deny information.
Section 22 of the RTI Act simplifies the process of implementing the right to information both for citizens as well as the PIO; citizens may seek to enforce their fundamental right to information by simply invoking the provisions of the RTI Act.
By this order the Supreme Court without addressing the provision of Section 22 has sanctified and legitimized denial of information under Right to Information, if any public authority claims there are any rules for giving information. This could have the effect to nullifying the impact and effect of the RTI Act in a serious way. Without Section 22, the Act will become fairly ineffective and public authorities will be able to block many RTI users.
I believe Information Commissions have a legitimate duty to pursue the provisions of the RTI Act and champion them in the spirit of the Act. Very few Commissioners do this, and the Supreme Court’s strictures for a legitimate exercise by a statutory authority are unfortunate. This would discourage Commissions from pursuing their duties. Logically, anyone who is a respondent or a petitioner has locus in a case.
I must point out that there is confusion amongst the courts on the matter of who should be the respondents when a RTI decision of the Information Commission is challenged in a writ. Karnataka and Bombay High Courts call the Commission as a respondent in many cases, and the Andhra High Court issues notice to AP State Information Commissioner and AP State Information Commission as a respondent. The Gujarat High Court named RN Das, Chief Information Commissioner as a respondent in WP 5178/2008, while the Delhi High Court refuses to accept the Information Commission as a respondent since last two years.
The only unexplained exception was in WP 3318/2012 when Shailesh Gandhi (myself), was named as respondent by the court, for discharging legitimate duties as an Information Commissioner. In these circumstances, the Karnataka Commission could not have had clarity on whether it could file a challenge to the ruling. If a citizen can file a PIL, is it so objectionable if an Information Commission challenges a major dilution to the RTI Act?
We recognize the Supreme Court’s jurisdiction in interpreting the law. In this case neither the high court nor the Supreme Court has dealt with the provision of Section 22 of the RTI Act, but appear to legitimize denial of information by all public authorities on the ground that citizens must apply for information under various rules. These have their different provisions and absence of independent appellate structures and penalty clauses.
Apart from this, the Supreme Court has issued a public reprimand to a statutory authority, without compelling reasons. Respect for the rule of law requires respect for the orders of various statutory authorities. This order would be a major setback for transparency and democracy in India. This will dilute the RTI Act more seriously than the removal of file notings from the ambit of RTI. If citizens are not vigilant, RTI will get constricted by such orders. RTI users must become aware of the damaging consequences of this order and discuss its implications.
(Shailesh Gandhi served as Central Information Commissioner under the RTI Act, 2005, during 18 September 2008 to 6 July 2012. He is a graduate in Civil Engineering from IIT-Bombay. Before becoming a full time RTI activist in 2003, he sold his packaging business, Clear Plastics. In 2008, he was conferred the Nani Palkhivala Memorial Award for civil liberties.)