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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 Courthad 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 theinformation withheld by it without sufficient cause. In State of U.P. vs. Raj Narain, (1975, SC428), the plea of privilege in respect of the information regarding the tour arrangements ofPrime Minister Indira Gandhi was disallowed by the Court and the State was directed todisclose the desired information.

In S. P. Gupta vs. President of India (AIR 1982 SC 149) , where the Government sought toresist the disclosure of certain documents on grounds of privilege, the apex court elevated theright to know to the status of a fundamental right within the ambit of Article 19(1) (a). Theprinciple enunciated by the apex court was that certain rights, though not spelt out in explicitforms, are implied under the rights already recognized and the judiciary should seek to establishthem 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 theirgovernment is doing. The citizens have a right to decide by whom and by what rules they shallbe governed and they are entitled to call on those who govern on their behalf to account for theirconduct. No democratic government can survive without accountability and the basic postulateof accountability is that the people should have information about the functioning of thegovernment. The citizens' right, to know the facts, the true facts, about, the administration of thecountry is thus one of the pillars of a democratic State. And that is why the demand foropenness in the government is increasingly growing in different parts of the world. Therecan be little doubt that' exposure to public gaze and scrutiny is one of the surest means ofachieving a clean and healthy administration. ..The concept of an open government isthe direct emanation from the right to know which seems to be implicit in the right of free speechand 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 onlywhere 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 speechand expression, it also stems from Article 21 as expounded by the Supreme court in ReliancePetrochemicals 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 pressand administration of justice observed, we must remember that the people at large have aright to know in order to be able to take part in a participatory development in the industrial lifeand democracy. Right to know is a basic right which citizens of a free country aspire in thebroader 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 aninformed citizenry as well as access to information. These factors inhibit corruption and promotegovernment 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 ofthe fundamental right to the freedom of speech and expression. The judiciary has thus playedan active role in recognizing this right.

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After a long struggle by civil society, Parliament enacted the Right to Information Act, 2005 tooperationalise this right. This legislation has the laudable objective of promoting transparency inthe governance of the country. Transparency in decision making processes of the State isessential, as informed citizens are better equipped to understand the logic and purpose behindany decision made by the State. The denial of access to information takes away from thecitizen 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 informationrequired to challenge arbitrary and illegal orders and initiate appropriate action againstdelinquent public servants.

The system of governance in our country is under enormous pressure. A series of unfortunateevents in the recent past has eroded the trust of the people of India. The dismal state of affairshas 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 takerecourse to the judiciary, which enjoyed a good reputation for honesty, responsibility andrighteousness. Over time, the access to justice for the common man has been reduced to anillusion. 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 findsitself unable to cope with the rate of institution of cases and is faced with a huge and mountingbacklog of cases. The maxim, justice delayed is justice denied, applies with full force to thesituation obtaining in India.

Concerned with this state of affairs, Common Cause had joined hands with Janhit Manch andother likeminded entities to file a comprehensive writ petition (civil) No.122/2008 in the SupremeCourt in March 2008, offering a multi-pronged strategy to expedite the dispensation of justiceand reverse the trend of a mounting backlog of court cases. Paradoxically, this petition, whichseeks judicial intervention for addressing the systemic ills responsible for the tardiness of justicein 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 variousjurisdictions. To this end, in the first quarter of year 2009, we filed applications under the RTI Actwith various High courts seeking information regarding cases pending with them and theirsubordinate courts. We specifically asked for copies of the periodical pendency returnssubmitted by the district courts. This experience gave us an interesting insight into the mindsetsof 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-attestedphotograph pasted on it. The Rajasthan High Court had a similar requirement, while some otherHigh Courts insisted that in addition to making the request for information in the prescribedformat, the applicant state why the information is being sought. The Allahabad High Courtdemanded a positive assertion that motive for seeking information was proper!

It is an established principle of law that the locus standiof the applicant is of no consequenceunder the RTI Act. Any citizen can ask for any information that is not protected by theexemption clause. The Public Information Officer is under a legal duty to supply the desired

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information. Sub-clause (2) of Section 6 says that an applicant shall not be required to give anyreason for seeking the information or any other personal details, except those, that may benecessary, for contacting him. Thus, neither can information be refused on the ground that thereason for seeking the information is not a bona fide reason, nor it can be enquired from theapplicant as to why he is seeking the information. Therefore, such stipulations in the HighCourts 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 ofadhesive court fee stamps. The High Courts of Karnataka, Patna and Calcutta required thatfees be paid in cash only against proper receipt, thereby demanding a personal visit to therespective Courts. The Department of Personnel and Training (DOPT) has given clearinstructions 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. Itmay result into imposition of penalty by the Central Information Commission on the concernedCentral Public Information Officer (PIO) under Section 20 of the Act. All the public authoritiesshould, 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 AllahabadHigh Court further stipulated that every application shall be made for one particular item ofinformation only. The Rajasthan High Court had specified an application fee of Rs. 100/, whilethe High Courts of Gujarat, Madras, Madhya Pradesh and Patna specified an application fee ofRs.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. SomeHigh Courts had specified fees for appeal, which is not provided for in the RTI Act. A number ofHigh Courts had stated in their rules that if the application was filed with a person other than theperson who held the required information, the application would be returned to the applicant andthe 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 anon obstante clause.

Under Section 28 of the RTI Act, the competent authority has been given powers to make rulesto carry out the provisions of the RTI Act. However, such rules, when framed, should further theintention, object and the purpose of the RTI Act. These rules should not infringe upon the basicright itself, or restrict the applicability of the RTI Act and defeat its very object and purpose. Thesame sentiment was expressed by the apex court in the case of A.N. Roy, Commissioner ofPolice and another vs. Suresh Sham Singh, (2006, 5 SCC 745) as well as in the case ofRaghunath Rai Bareja vs. Punjab National Bank, (2007, 2 SCC 230). The Chief Justices of theHigh 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 abovedemonstrate that the law enacted for furtherance of the right to information is considered anempty rhetoric when it comes to the implementation of the law by the administrative wings of thehigher judiciary. The judiciary, which is supposed to uphold the law and protect the citizens rightto 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 desiredinformation. The orders of the first appellate authorities in almost all the cases confirmed the

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orders of the CPIOs. We chose to take recourse to the remedy provided in section 18 of theRTI Act and lodged complaints with the Central Information Commission. Regrettably, in most ofthe complaints filed by Common Cause highlighting the procedural complexities and high costinvolved in compliance of rules framed by various High Courts, the decisions of the ChiefInformation Commissioner (CIC) did not properly address the issues raised.

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

This concern was, however, overlooked by the Commission, as is evident from its letters to theHigh Courts of Rajasthan, Mumbai, Madhya Pradesh, Patna, Karnataka, Allahabad and Kolkatadirecting them to offer theirjustification for denial of information. The fact that the PIOs of someof the High Courts had used the provisions of the RTI rules framed by their respective ChiefJustices 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 toexamine the rules prescribed by various High Courts of the country and pass appropriatedirections to bring them in conformity with the spirit of the RTI Act and facilitate the exercise ofthe 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 thatunder section 2 (e) and 2 (g) of the RTI Act, the Chief Justices of the High Courts were wellwithin their rights to frame the rules and rejected the complaint without addressing the issue ofthe 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 thecomplaint filed against Patna High Court.

Disposing of the complaint against the Calcutta High Court, the Commission passed a directionunder Section 19 (8) (a) of the RTI Act to the High Court to secure compliance of its direction byplacing the High Court RTI rules on the website of the High Court. Thanks to the effort put in byCommon 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 afternotification. Be that as it may, these rules are violative of the spirit of the RTI Act as theyprescribe a high application fee, a fee for filing an appeal and require the appellant to depositthe fees in the office of the authorized person. The Commission had recommended to the HighCourt to so modify its rules of payment as to allow easier access to information in keeping withthe spirit of the RTI Act, but this recommendation has fallen on deaf ears as is evident from therules posted on the website of the High Court.

In its complaint against the Allahabad High Court, Common Cause had specifically cited certainrules of the High Court, which were against the spirit of the RTI Act. The Commission directedthe Allahabad High Court to take steps to bring rule 20 (i) & (v) [this rule demands a positiveassertion from the applicant that motive for seeking information is proper] in direct compliancewith the provisions of the RTI Act. The Commission, however, did not find fault with the HighCourts insistence on providing information only in accordance with its ordinary rules ofprocedure for the conduct of business instead of providing it under the RTI rules. This istantamount to a violation of Section 22 of the RTI Act, which is a non obstante clause. The

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Commission also made a recommendation to the High Court to reduce its RTI fees. The HighCourt has so far not rectified these deficiencies in the rules posted on the Courts website.

Thus, our quest for information has run into the twin road blocks of the arbitrariness of theadministrative side of the judiciary and the faint-heartedness of the Central InformationCommission.

Ironically, the CIC has time and again, emphasized that the right to information is afundamental 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 theinternal rules of a Public Authority, the RTI Act must prevail even if the internal rulespertain to the Supreme Court.

In view of the foregoing arguments, this Commission respectfully disagrees with thedecision 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 applyfor information under Order XII of the SC Rules. This Bench further rules that all citizenshave the right to access information under Section 3 of the RTI Act and PIOs shallprovide the information sought to the citizens, subject always to the provisions of theRTI Act only. Where there are methods of giving information by any public authoritywhich were in existence before the advent of the RTI Act, the citizen may insist oninvoking the provisions of the RTI Act to obtain the information. It is the citizensprerogative to decide under which mechanism i.e. under the method prescribed by thepublic 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 ofRTI 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 orpractice (CIC/PA/A/2009/000012). The CIC passed an order dated August 12, 2010 infavour of the appellant and made the following observation:

1. .a simple reading of Rule 20 of the Allahabad High Court Right to InformationRules 2006, clarifies that information will be furnished if so furnishing it is nototherwise against any law. In this case disclosure of such information is not againstthe law. If, on the other hand, it has been the practice in the High Court of Allahabadnot 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 thepractice of managing such information to bring it into conformity with the RTI Act2005.

2. Appellate Authority has also held that the information is refused because appellanthas not divulged his motive in seeking the information. .the stand taken by theRegistrar 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 HighCourt under section 25 (5) of the RTI Act to amend the rule in contravention tobring it in full conformity with both the letter and spirit of the RTI Act, 2005.

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c. In another case, the CPIO, High Court of Delhi had denied information regarding inquiriesinto complaints against judges to the appellant and this action was endorsed by the firstappellate authority on the ground that in order to ensure independence of the judges andmagistrates from undesirable pressure and interference, it was necessary not to disclosethe details about any inquiry into complaints against them as in many cases, frivolousand 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 thecompetent authority as well as the file notings leading to such order. The CIC observedthat the PIO could not deny any information other than those specifically exemptedunder 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, thenumber of cases reserved for orders in which no order had been passed even after alapse of two months or more. This information was denied on the ground that in the firstplace it was not being maintained. It was also argued that the information regarding suchcases 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 informationcould not be disclosed as exempt under Section 8 (1) (e) of the Right to Information(RTI) Act.

The CIC held (CIC/WB/A/2009/000761SM dated)that the information requested for wasalso kept in the record of the court master hence the fiduciary capacity exemptionwould not apply in this case and the disclosure of such information would serve a largerpublic interest. Therefore, the CIC directed the CPIO to locate the relevant records andto provide photocopies of those reports containing the lists of cases relevant to the RTIrequest of the Appellant within 15 working days from the receipt of the CIC order datedMay 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 informationregarding the system of working and in regard to certain correspondence between theGovernment of India, Ministry of Law and the Supreme Court of India. The CPIO had notprovided 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 thePIO to provide to the appellant the information requested for by him.

e. In a landmark order (CIC/WB/A/2007/00418) dated September 23, 2008 the CIC askedthe Delhi High Court to amend its rules so as to adhere to the spirit of the RTI Act. In thiscase, the information sought by the appellant was denied by the Jt. Registrar of the DelhiHigh Court under the Delhi High Court (Right to Information) Rules. When the mattercame 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 wasaffected by the information sought. The said rule had been incorporated, in the words ofthe learned counsel, to protect the information held by the Delhi High Court frommeddlesome interlopers. The CIC directed the Registrar, Delhi High Court to provide tothe appellant the information sought by her and also advised the Delhi High Court totake steps to make the rules consistent with sections 6 and 7 of the RTI Act.

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One may cite here another interesting instance of the CICs readiness to challenge the judiciarys practice of withholding information on convoluted procedural grounds. InOctober 2009, Common Cause approached the Supreme Court and the High Court witha request under the RTI Act for information on pending cases in which arguments hadcompleted but the judgment had been reserved. While the Delhi High Court readilyfurnished 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 wasalso contended that the matters filed are pending/sub judice before the Court till they aredecided and that access to information regarding such matters was governed by theSupreme Court Rules 1966. The First Appellate Authority of the Supreme Courtconcurred with the CPIO and hence a second appeal was filed before the CIC on April 5,2010 on the following ground:

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 nottenable as matters in which arguments have been concluded and judgment reserved arekept 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 theSupreme Court are reported in Law Journals. The information requested for, pertains toreserved 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 anyinformation regarding matters that are sub-judice. The appellants referred to the Rulesas advised, however, neither the Rules nor Section 8 of the RTI Act bars disclosure ofinformation sought for by the appellants.

e. The information sought for by the appellants is limited to statistical details, which in noway would influence or interfere with the dispensation of justice in the pending cases inquestion. 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 restrictionsand cannot be imposed by an administrative order.

g. The request of the appellant for copies of policy/guidelines for expeditious delivery ofjudgment 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 theexemption clause of the RTI Act therefore the CPIO is at fault in denying the informationrequested for.

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

This order of the CIC has now been challenged by the Supreme Court in the Delhi HighCourt on the ground that it was without jurisdiction. Appearing for the Supreme Court

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Registry, Attorney General G E Vahanvati said "there does not exist any separatecompilation of list of cases where arguments have been heard and orders reserved."

Seeking quashing of the CIC order, Mr. Vahanvati contended, "CIC cannot direct tocreate a document which does not exist. Only documents which are existing and held bypublic 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, hasbeen put on a high pedestal. The fundamental rights are inviolate. In fact, the remedy againstinfringement 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 wardoff encroachments by the organs of the state. Special provisions have been incorporated in theConstitution in Article 32 and Article 226 so that the right to approach the Supreme Court andthe respective High Courts for enforcement of fundamental rights is ensured. The CIC being thehighest 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 ofthe RTI Act. It is now incumbent on the CIC to assert itself and compel the higher judiciary torectify the obstructive rules governing the citizens access to information held by the High Courtsand the Supreme Court.