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In other words, where there is any inconsistency in a law as regards furnishing of information, such law shall be superseded by the RTI Act.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.)
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
Appeal No. CIC/SG/A/2009/001370
Appellant : Rajinder Kumar Kaushik
Respondent : Amitabh Joshi
Public Information Officer
O/o the Director (Vigilance)
Delhi Secretariat, I. P. Estate,
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