Right to Information
Supreme Court order to impact RTI Act

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In other words, where there is any inconsistency in a law as regards furnishing of information, such law shall be superseded by the RTI Act.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.)

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COMMENTS

ABHA CHAWLA MOHANTY

3 years ago

A PERSONAL OBSERVATION TO MR SAILESH GANDHI ...SIR ,WITH DUE RESPECTS THE CHIEFS IN CHAIR AT COMMISSION NEED TO DISCARD "SOFT HEARTED" APPROACH FOR GOVERNMENT BODIES....,OTHERWISE ,YOUR TOIL AND OTHERS WILL BE ASSIGNED TO MEMORY ....WITH REGARDS .....

ABHA CHAWLA MOHANTY

3 years ago

THE CONSTITUTIONAL PROVISIONS TO SAFEGUARD TRIPPINGS IN GOVERNMENT ORGANIZATION IS MONUMENTAL....THE PUBLIC RIGHT TO KNOW ....IS BEING JETTISONED ,....INFORMATION IS POWER....

SuchindranathAiyerS

4 years ago

The trade unionization of the courts is visible to every unfortunate litigant. Higher Courts do not proceed as per law and facts but hand down banal advice to arrive at "amicable settlements". Indefinite stays and perpetual adjournments are granted to favour the wealthy and the powerful even in cognized criminal cases where evidence is yet to be recorded in the cognizing competent court. What purpose can such procrastination, prevarication and temporizing serve other than, perhaps, foment a culture of extortion or corruption? Unaccountable and well nigh unpunishable, Courts protect their own in faithful imitation of the rest of Indian governance.

REPLY

Vinay Joshi

In Reply to SuchindranathAiyerS 4 years ago

Suchindranath AiyerS,

Kindly desist from such comments.

It can be contempt of court.

Mind well your comments relate to the apex court judgement putforth by non other than Hon'CIC[ex]in the context.

Regards,


Jayesh Bheda

In Reply to Vinay Joshi 4 years ago

Its high time that protest is required even against the judiciary without fear of any contempt proceedings.

And in my view the comment of SuchindranathAiyerS does not attract any contempt of the Court. The prevailing situation is as such which cannot be denied by the Courts also!

Vinay Joshi

4 years ago

Mr.Shailesh Gandhi,

As per RTI who is the aggrieved person? KIC? What is the locus of the petitioner?

SC rightly described it as frivolous imposing 100K penalty before dismissing it.

In my considered opinion SC has rightly expressed it’s displeasure hearing the appellant in SLP.

335 days delay was condoned by HC, dismissed it on similar grounds.

A distinguished bench of Justices, H.L Gokhale & G.S Singhvi has pointed out that as a judicial body the IC could not be aggrieved in personal capacity.
Who had authorized him to do so?
Has he paid the litigation cost from his pocket?

When there was no question of law why IC petitioned the SC?

Had K'HC Dy.Regstr. refused info as per HC Act & rules application the HC itself would have been convinced.

IC had gone overboard.

Regards,

Vaibhav Dhoka

4 years ago

This is mockery of democracy.Since many months in past through this column I am of view that Judiciary needs urgent overhaul as the system is on verge of collapse.

RTI Judgement Series: When PIO sends complaint to the body against which allegations were made

The PIO sent a complaint to the Registrar of Cooperative Societies, against which allegations of corruption of about Rs39 crore were made. The CIC then asked the PIO to provide letters and file notings of the process followed to take the decision. This is the 32nd in a series of important judgements given by former Central Information Commissioner Shailesh Gandhi that can be used or quoted in an RTI application

Questioning the rational of sending a complaint to the body against which the allegations are made, the Central Information Commission (CIC) directed the Public Information Officer (PIO) to provide the letters and notings which evidence the process of deciding to send this case to the body. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner said it appears a little bizarre and difficult to understand what purpose would be served by this.

 

“The Commission directs Amitabh Joshi, the PIO of the Director of Vigilance, to provide the letters and notings which evidence the process of deciding to send this case to the Registrar of Cooperative Societies (RCS),” the CIC said in its order issued on 13 July 2009.

 

Delhi resident Rajinder Kumar Kaushik, on 9 May 2008, filed a complaint about corruption and embezzlement to the tune of Rs39 crore alleging that officers of the Registrar of Cooperative Societies were involved with the Central Bureau of Investigation (CBI). He sought the status and progress report of the following documents:

 

i) Letter No.DLI/ACB/Complaints/CA-2865/06/8123 dated 08/06/20007 sent to the Director (Vigilance) w.e.f 13/11/2006 to till date

ii) The names and designations of the officials who were entrusted/assigned to take action or investigate.

iii) The names with the addresses of the persons who were summoned to appear or record their statement and/or examined in the process of investigation.

iv) As these officials (who were supposed to attend but not done so) found erring/guilty, does your good office (i.e. Director Vigilance) plan to take action against them?

v) If yes, in how much time & shape i.e. penalty/punishment/department enquiry or any other?

 

Since Mr Kaushik said he did not receive any reply from the PIO, he filed first appeal with the First Appellate Authority (FAA). The FAA in his order stated that the PIO had given the reply within the stipulated time, which is given below:

 

i) A complaint dated 13 November 2006 was received from RK Kaushik, in through CBI vide No DLI/Anti Corruption Branch/Complain/CA 2865/06/8123 dated 8 June 2007 the complaint was forwarded to RCS vide letter dated 11 July 2007 for taking necessary action at their end.

ii) The requisite information pertains to office of the RCS, Government of National Capital Territory of Delhi (GNCTD), in the view of above a copy of the RTI application is being transferred u/s 6(3) of RTI Act to the PIO RCS for furnishing information.

iii) As above.

iv) As above.

v) As above.

 

The FAA, later said, “The appellant sought names and details of the officials who were assigned investigation of the complaint made by the appellant. Since the complaint was forwarded by the Directorate of Vigilance to the officer of the RCS for necessary action, such information could be provided by the office of RCS. Hence, the PIO’s decision to transfer the application of the appellant was correct. He was in no position to supply information sought vide point Nos. 2, 3, 4 and 5 of the application. During the hearing the appellant did not inform if he received any reply from the PIO of RCS in respect of the transferred application.”

 

Not satisfied with the reply received from the FAA, Mr Kaushik then filed the second appeal before the CIC. During the hearing on 10 November 2008, the Commission noted that the appellant had filed a complaint about corruption and embezzlement to the tune of Rs39 crore alleging that officers of the Registrar of Cooperative Societies were involved with the CBI. The CBI sent the complaint to the Director of Vigilance.

 

“The information provided by the PIO to the appellant was that the complaint was in turn forwarded to the RCS by the Director of Vigilance. This is appearing a little bizarre since it is difficult to understand what purpose will be served by sending a complaint to the body against whom the allegations are made," Mr Gandhi, the CIC, said.

 

While allowing the appeal, the Commission then directed the PIO of the Director of Vigilance to provide the letters and notings which evidence the process of deciding to send this case to the RCS before 30 July 2009.

 

CENTRAL INFORMATION COMMISSION

 

Decision No. CIC/SG/A/2009/001370/4110

http://www.rti.india.gov.in/cic_decisions/SG-13072009-45.pdf

Appeal No. CIC/SG/A/2009/001370

 

 

Appellant                                          : Rajinder Kumar Kaushik

                                                               New Delhi-110003

 

Respondent                                      : Amitabh Joshi

                                                              Public Information Officer

                                                              O/o the Director (Vigilance)

                                                              Delhi Secretariat, I. P. Estate,

                                                              New Delhi-110002

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