RTI, FUNDAMENTAL RIGHTS AND THE JUDICIARY - A PERSPECTIVE

*Swapna Jha

Much before the enactment of the Right to Information Act, 2005 (RTI Act) the Supreme Court had emphasized the significance of the right to information for bringing about transparency in the government. Many of the orders of the apex court directed the State to disclose the information withheld by it without sufficient cause. In State of U.P. vs. Raj Narain, (1975, SC 428), the plea of privilege in respect of the information regarding the tour arrangements of Prime Minister Indira Gandhi was disallowed by the Court and the State was directed to disclose the desired information. In S. P. Gupta vs. President of India (AIR 1982 SC 149), where the Government sought to resist the disclosure of certain documents on grounds of privilege, the apex court elevated the “right to know” to the status of a fundamental right within the ambit of Article 19(1) (a). The principle enunciated by the apex court was that certain rights, though not spelt out in explicit forms, are implied under the rights already recognized and the judiciary should seek to establish them by a liberal interpretation.

The court held “………. Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. The citizens’ right, to know the facts, the true facts, about, the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the government is increasingly growing in different parts of the world. ……There can be little doubt that’ exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. …………..The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1) (a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands.”

Not only is the right to information an integral part and a basic tenet of the freedom of speech and expression, it also stems from Article 21 as expounded by the Supreme court in Reliance Petrochemicals Ltd. vs. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd. and others, (1988) [4 SCC 592]. In this case, the apex court while dealing with the issue of freedom of press and administration of justice observed, “…we must remember that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon themselves the responsibility to inform”.

Our Constitution provides for a democratic republic. A functioning democracy necessitates an informed citizenry as well as access to information. These factors inhibit corruption and promote government accountability. The judgment of the apex court, being the law of the land, as per Article 141 of the Constitution, has helped to establish the right to information as an attribute of the fundamental right to the freedom of speech and expression. The judiciary has thus played an active role in recognizing this right.

After a long struggle by civil society, Parliament enacted the Right to Information Act, 2005 to operationalise this right. This legislation has the laudable objective of promoting transparency in the governance of the country. Transparency in decision making processes of the State is essential, as informed citizens are better equipped to understand the logic and purpose behind any decision made by the State. The denial of “access to information” takes away from the citizen the right to redress against any unjust action by the State. The exercise of the right to information helps in keeping a check on corruption by empowering the citizens with information required to challenge arbitrary and illegal orders and initiate appropriate action against delinquent public servants.

The system of governance in our country is under enormous pressure. A series of unfortunate events in the recent past has eroded the trust of the people of India. The dismal state of affairs has lowered the morale of the common man, who has little hope from the government.

There was a time when, aggrieved by executive decisions, the common man could take recourse to the judiciary, which enjoyed a good reputation for honesty, responsibility and righteousness. Over time, the access to justice for the common man has been reduced to an illusion. Owing to a lack of infrastructure an inadequate workforce and the failure to implement various reforms suggested by a succession of expert commissions, our judicial system finds itself unable to cope with the rate of institution of cases and is faced with a huge and mounting backlog of cases. The maxim, justice delayed is justice denied, applies with full force to the situation obtaining in India.

Concerned with this state of affairs, Common Cause had joined hands with Janhit Manch and other likeminded entities to file a comprehensive writ petition (civil) No.122/2008 in the Supreme Court in March 2008, offering a multi-pronged strategy to expedite the dispensation of justice and reverse the trend of a mounting backlog of court cases. Paradoxically, this petition, which seeks judicial intervention for addressing the systemic ills responsible for the tardiness of justice in the country, has itself become a victim of the system. The main respondent, Union of India, has filed its affidavit in reply, more than three years after the admission of the PIL.

In the mean time, we tried to undertake a fine analysis of the backlog of cases in various jurisdictions. To this end, in the first quarter of year 2009, we filed applications under the RTI Act with various High courts seeking information regarding cases pending with them and their subordinate courts. We specifically asked for copies of the periodical pendency returns submitted by the district courts. This experience gave us an interesting insight into the mindsets of the High Courts as reflected in the rules framed by them for the implementation of the RTI Act.

The Mumbai High Court had posted “Maharashtra District Courts, Right to Information Rules, 2006” on its website, but no such rules for the High Court itself were available on the website. The website of the High Court of Kerala was dysfunctional. The High Court of Madhya Pradesh rules prescribed that the application be made in a particular format with a self-attested photograph pasted on it. The Rajasthan High Court had a similar requirement, while some other High Courts insisted that in addition to making the request for information in the prescribed format, the applicant state why the information is being sought. The Allahabad High Court demanded a positive assertion that motive for seeking information was proper!

It is an established principle of law that the locus standi of the applicant is of no consequence under the RTI Act. Any citizen can ask for any information that is not protected by the exemption clause. The Public Information Officer is under a legal duty to supply the desired information. Subclause (2) of Section 6 says that an applicant shall not be required to give any reason for seeking the information or any other personal details, except those, that may be necessary, for contacting him. Thus, neither can information be refused on the ground that the reason for seeking the information is not a bona fide reason, nor it can be enquired from the applicant as to why he is seeking the information.

Therefore, such stipulations in the High Courts rules are contrary to the spirit of the RTI Act and violative of the fundamental right to the freedom of speech and expression.

It was also observed that most of the High Courts had prescribed payment of fees by way of adhesive court fee stamps. The High Courts of Karnataka, Patna and Calcutta required that fees be paid in cash only against proper receipt, thereby demanding a personal visit to the respective Courts. The Department of Personnel and Training (DOPT) has given clear instructions to the public authorities to accept fees paid by means of IPO. The DOPT has said, “Refusal to accept fee through the IPO may be treated as refusal to accept the application. It may result into imposition of penalty by the Central Information Commission on the concerned Central Public Information Officer (PIO) under Section 20 of the Act. All the public authorities should, therefore, ensure that payment of fee by IPO is not denied.”

The High Courts of Delhi and Allahabad had set the application fee at Rs.500/-. The Allahabad High Court further stipulated that “every application shall be made for one particular item of information only”. The Rajasthan High Court had specified an application fee of Rs. 100/, while the High Courts of Gujarat, Madras, Madhya Pradesh and Patna specified an application fee of Rs.50/-. In our view, such high application fees were inconsistent with Section 7(5) of the RTI Act. This was construed as a deliberate attempt to discourage citizens from using the RTI Act.

Various High Courts had specified photocopying charges of Rs.10/- or Rs.15/- per page. Some High Courts had specified fees for appeal, which is not provided for in the RTI Act. A number of High Courts had stated in their rules that if the application was filed with a person other than the person who held the required information, the application would be returned to the applicant and the application fee forfeited. Such provisions violate Section 6(3) of the RTI Act, 2005 and are illegal in nature. Many High Court rules were in conflict with Section 22 of the RTI Act, which is a non obstante clause. Under Section 28 of the RTI Act, the competent authority has been given powers to make rules to carry out the provisions of the RTI Act. However, such rules, when framed, should further the intention, object and the purpose of the RTI Act. These rules should not infringe upon the basic right itself, or restrict the applicability of the RTI Act and defeat its very object and purpose. The same sentiment was expressed by the apex court in the case of A.N. Roy, Commissioner of Police and another vs. Suresh Sham Singh, (2006, 5 SCC 745) as well as in the case of Raghunath Rai Bareja vs. Punjab National Bank, (2007, 2 SCC 230). The Chief Justices of the High Courts have been granted the power to frame rules as competent authority under the RTI Act.

The pronouncements of the apex court notwithstanding, the High Courts rules referred to above demonstrate that the law enacted for furtherance of the right to information is considered an empty rhetoric when it comes to the implementation of the law by the administrative wings of the higher judiciary. The judiciary, which is supposed to uphold the law and protect the citizen’s right to information, has itself belied these expectations in the exercise of its administrative powers.

In our case the CPIOs of the High Courts used their obstructive rules to deny the desired information. The orders of the first appellate authorities in almost all the cases confirmed the orders of the CPIOs. We chose to take recourse to the remedy provided in section 18 of the RTI Act and lodged complaints with the Central Information Commission. Regrettably, in most of the complaints filed by Common Cause highlighting the procedural complexities and high cost involved in compliance of rules framed by various High Courts, the decisions of the Chief Information Commissioner (CIC) did not properly address the issues raised.

The issue agitated before the CIC in these complaints was not the refusal or denial of information by the High Courts. The crux of these complaints was that the rules prescribed by the various High Courts were impeding the access to information. The Commission was accordingly requested to examine the rules framed by various High Courts with a view to rectifying the deviations from the letter and spirit of the RTI Act, 2005 and pass appropriate directions in this regard.

This concern was, however, overlooked by the Commission, as is evident from its letters to the High Courts of Rajasthan, Mumbai, Madhya Pradesh, Patna, Karnataka, Allahabad and Kolkata directing them to offer their justification for denial of information. The fact that the PIO’s of some of the High Courts had used the provisions of the RTI rules framed by their respective Chief Justices to deny the desired information was only incidental to the complaints and not the core issue agitated before the Commission. Common Cause had requested the Commission to examine the rules prescribed by various High Courts of the country and pass appropriate directions to bring them in conformity with the spirit of the RTI Act and facilitate the exercise of the right to information granted under the Act to the common man.

In the case of the High Courts of Mumbai, Karnataka and Patna, the Commission observed that under section 2 (e) and 2 (g) of the RTI Act, the Chief Justices of the High Courts were well within their rights to frame the rules and rejected the complaint without addressing the issue of the rules not being in conformity with the spirit of the RTI Act. The Commission however, appreciated the feedback provided by Common Cause in its decision while dealing with the complaint filed against Patna High Court.

Disposing of the complaint against the Calcutta High Court, the Commission passed a direction under Section 19 (8) (a) of the RTI Act to the High Court to secure compliance of its direction by placing the High Court RTI rules on the website of the High Court. Thanks to the effort put in by Common Cause, the Calcutta High Court has posted its rules on its website on February 2, 2007. It needs to be highlighted that the relevant notification bears the date of February 2, 2007. It defies comprehension why these rules had not been posted on the website immediately after notification. Be that as it may, these rules are violative of the spirit of the RTI Act as they prescribe a high application fee, a fee for filing an appeal and require the appellant to deposit the fees in the office of the authorized person. The Commission had recommended to the High Court to so modify its rules of payment as to allow easier access to information in keeping with the spirit of the RTI Act, but this recommendation has fallen on deaf ears as is evident from the rules posted on the website of the High Court.

In its complaint against the Allahabad High Court, Common Cause had specifically cited certain rules of the High Court, which were against the spirit of the RTI Act. The Commission directed the Allahabad High Court to take steps to bring rule 20 (i) & (v) [this rule demands a positive assertion from the applicant that motive for seeking information is proper] in direct compliance with the provisions of the RTI Act. The Commission, however, did not find fault with the High Court’s insistence on providing information only in accordance with its ordinary rules of procedure for the conduct of business instead of providing it under the RTI rules. This is tantamount to a violation of Section 22 of the RTI Act, which is a non obstante clause. The Commission also made a recommendation to the High Court to reduce its RTI fees. The High Court has so far not rectified these deficiencies in the rules posted on the Court’s website.

Thus, our quest for information has run into the twin road blocks of the arbitrariness of the administrative side of the judiciary and the faint-heartedness of the Central Information Commission. Ironically, the CIC has time and again, emphasized that the right to information is a fundamental right, which cannot be violated even by the administrative side of the judiciary.

The orders/decisions of the CIC cited below are categorical on this point:

a. In appeal No. CIC/SM/A/2011/000237/SG dated May 11, 2011 against the order of the CPIO of the Supreme Court the CIC ruled that in a conflict between the RTI Act and the internal rules of a Public Authority, the RTI Act must prevail even if the internal rules pertain to the Supreme Court.

“In view of the foregoing arguments, this Commission respectfully disagrees with the decision of the then Chief Information Commissioner that the PIO, Supreme Court may choose to deny the information sought under the RTI Act and ask an applicant to apply for information under Order XII of the SC Rules. This Bench further rules that all citizens have the right to access information under Section 3 of the RTI Act and PIOs shall provide the information sought to the citizens, subject always to the provisions of the RTI Act only. Where there are methods of giving information by any public authority which were in existence before the advent of the RTI Act, the citizen may insist on invoking the provisions of the RTI Act to obtain the information. 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, she would like to obtain the information.” b. In August 2010, the CIC took strong exception to the Allahabad High Court’s rejection of RTI applications which sought details of action on complaints against judges of subordinate courts on grounds that the disclosure of such information was not a rule or practice (CIC/PA/A/2009/ 000012). The CIC passed an order dated August 12, 2010 in favour of the appellant and made the following observation:

1. ……….a simple reading of Rule 20 of the Allahabad High Court Right to Information Rules 2006, clarifies that information will be furnished if so furnishing it is not otherwise against any law. In this case disclosure of such information is not against the law. If, on the other hand, it has been the practice in the High Court of Allahabad not to disclose such information this practice is ultra vires of the RTI Act 2005 and, therefore, CPIO Shri G.K. Srivastava is directed u/s 19 (8) (a) (iv) in relation to the practice of managing such information to bring it into conformity with the RTI Act 2005.

2. Appellate Authority has also held that the information is refused because appellant has not divulged his motive in seeking the information. ….the stand taken by the Registrar General, High Court of Allahabad is in direct contravention of Section 6 (2) of the RTI Act….

The CIC also made a recommendation to the Chief Justice, Allahabad High Court under section 25 (5) of the RTI Act to amend the rule in contravention to bring it in full conformity with both the letter and spirit of the RTI Act, 2005.

c. In another case, the CPIO, High Court of Delhi had denied information regarding inquiries into complaints against judges to the appellant and this action was endorsed by the first appellate authority on the ground that in order to ensure independence of the judges and magistrates from undesirable pressure and interference, it was necessary not to disclose the details about any inquiry into complaints against them as in many cases, frivolous and baseless complaints could be made against them to pressurize them to toe a particular line.

The CIC directed that the appellant be given the copy of the final order passed by the competent authority as well as the file notings leading to such order. The CIC observed that the PIO could not deny any information other than those specifically exempted under the RTI Act (CIC/WB/A/ 2009/001041SM order dated May 26, 2011).

d. In another case, the appellant wanted to know from the CPIO Delhi High Court, the number of cases reserved for orders in which no order had been passed even after a lapse of two months or more. This information was denied on the ground that in the first place it was not being maintained. It was also argued that the information regarding such cases was being furnished to the Chief Justice of the High Court in a sealed cover which the office of the Chief Justice held in a fiduciary capacity and, therefore, such information could not be disclosed as exempt under Section 8 (1) (e) of the Right to Information (RTI) Act./P>

The CIC held (CIC/WB/A/2009/000761SM dated)that the information requested for was also kept in the record of the court master hence the “fiduciary capacity exemption” would not apply in this case and the disclosure of such information would serve a larger public interest. Therefore, the CIC directed the CPIO to locate the relevant records and to provide photocopies of those reports containing the lists of cases relevant to the RTI request of the Appellant within 15 working days from the receipt of the CIC order dated May 26, 2011.e. On April 18, 2011, two cases (CIC/WB/A/2010/000316 & CIC/SM/A/2011 /001078) were decided by the CIC in favor of the applicant who had filed an RTI application with the PIO, Supreme Court, requesting for a variety of information regarding the system of working and in regard to certain correspondence between the Government of India, Ministry of Law and the Supreme Court of India. The CPIO had not provided any information, claiming exemption on one count or the other. The Appellate Authority had, by and large, endorsed the decision of the CPIO. The CIC ordered the PIO to provide to the appellant the information requested for by him./P>

e. In a landmark order (CIC/WB/A/2007/00418) dated September 23, 2008 the CIC asked the Delhi High Court to amend its rules so as to adhere to the spirit of the RTI Act. In this case, the information sought by the appellant was denied by the Jt. Registrar of the Delhi High Court under the Delhi High Court (Right to Information) Rules. When the matter came up for hearing before the CIC, the counsel for respondents submitted that the information sought could not be provided in light of Rule 4 (iv) of the Delhi High Court (Right to Information) Rules, 2006, since the appellant had not shown as to how she was affected by the information sought. The said rule had been incorporated, in the words of the learned counsel, to protect the information held by the Delhi High Court from “meddlesome interlopers”. The CIC directed the Registrar, Delhi High Court to provide to the appellant the information sought by her and also advised the Delhi High Court to take steps to make the rules consistent with sections 6 and 7 of the RTI Act. One may cite here another interesting instance of the CIC’s readiness to challenge the judiciary’s practice of withholding information on convoluted procedural grounds. In October 2009, Common Cause approached the Supreme Court and the High Court with a request under the RTI Act for information on pending cases in which arguments had completed but the judgment had been reserved. While the Delhi High Court readily furnished the desired information, the CPIO of the Supreme Court denied the request on the ground that data was not maintained in the Registry in the manner sought. It was also contended that the matters filed are pending/sub judice before the Court till they are decided and that access to information regarding such matters was governed by the Supreme Court Rules 1966. The First Appellate Authority of the Supreme Court concurred with the CPIO and hence a second appeal was filed before the CIC on April 5, 2010 on the following ground:/P>

a. The record of proceedings maintained by the Registry does have the information (data) regarding dates, on which, arguments were concluded and judgment reserved.

b. The argument that all cases pending with the Supreme Court are sub-judice is not tenable as matters in which arguments have been concluded and judgment reserved are kept in a separate category than matters in which arguments are yet to be concluded.

c. The CPIO has made a misleading reference to the fact that all judgments of the Supreme Court are reported in Law Journals. The information requested for, pertains to “reserved judgments”, i.e. cases in which judgments are yet to be pronounced.

d. The appellants were advised to refer to the Supreme Court Rules 1966 for any information regarding matters that are sub-judice. The appellants referred to the Rules as advised, however, neither the Rules nor Section 8 of the RTI Act bars disclosure of information sought for by the appellants.

e. The information sought for by the appellants is limited to statistical details, which in no way would influence or interfere with the dispensation of justice in the pending cases in question. Thus reluctance to furnish information on matters that are sub-judice in not justifiable.

f. That under Article 19 (2) of the Constitution, restrictions can only be statutory restrictions and cannot be imposed by an administrative order.

g. The request of the appellant for copies of policy/guidelines for expeditious delivery of judgment in fully heard cases has neither been granted nor denied by the CPIO.

h. The denial of information is also assailed on the ground that it is not covered under the exemption clause of the RTI Act therefore the CPIO is at fault in denying the information requested for.

The CIC has yet to hear this appeal. However, on the same issue, which was agitated in the second appeal filed by Commodore Lokesh Batra, who had approached the Supreme Court in December 2010 for information on reserved judgment, the CIC has held that the total number of such cases in which orders were reserved should be duly intimated to the general public. The CIC directed the CPIO to provide to the appellant the desired information, within fifteen working days if such information was available centrally, and, if it was not available centrally, then to ensure that necessary arrangements were made in future for compiling such information and disclosing it in the public domain in order to facilitate the citizens to learn about the status of pendency before the Supreme Court.

This order of the CIC has now been challenged by the Supreme Court in the Delhi High Court on the ground that it was without jurisdiction. Appearing for the Supreme Court Registry, Attorney General G E Vahanvati said “there does not exist any separate compilation of list of cases where arguments have been heard and orders reserved.”

Seeking quashing of the CIC order, Mr. Vahanvati contended, “CIC cannot direct to create a document which does not exist. Only documents which are existing and held by public authority are accessible under the RTI Act.”

For the present, the order of the CIC (CIC/WB/A/2010/000320 & 321SM dated August 3, 2011) has been stayed.

To sum up, the right to information, which has been recognized as a fundamental right, has been put on a high pedestal. The fundamental rights are inviolate. In fact, the remedy against infringement of such rights is also a fundamental right under Article 32 of the Constitution. The judiciary has been entrusted with the onerous task of upholding the fundamental rights and ward off encroachments by the organs of the state. Special provisions have been incorporated in the Constitution in Article 32 and Article 226 so that the right to approach the Supreme Court and the respective High Courts for enforcement of fundamental rights is ensured. The CIC being the highest authority under the RTI Act has repeatedly been recommending to the competent authorities of the higher judiciary that their RTI rules be brought in consonance with the spirit of the RTI Act. It is now incumbent on the CIC to assert itself and compel the higher judiciary to rectify the obstructive rules governing the citizen’s access to information held by the High Courts and the Supreme Court.

*Swapna Jha is a researcher at Common Cause.