The
Wire: New Delhi: Friday, 04 September 2015.
While the
government often comes under fire for not effectively implementing the RTI Act,
few have noticed that India’s highest court violates the Act routinely, and
with an impunity that makes the government’s evasion of the RTI Act seem
benign.
Consider
the following:
· On 20th February 2008, Satnam Singh, a prisoner in
Ludhiana’s Central Jail sent a Right to Information (RTI) request to the Supreme
Court (SC) asking for a copy of its guidelines on police reforms. The Public
Information Officer (PIO) of the SC denied the request and referred Singh to
the SC website. Singh filed a first appeal pointing out that as a prisoner, he
had no access to a computer, and that, by not sending him the information, the
SC was denying him his right. Hearing the appeal, the Registrar, SC too denied
the request, now asking him to apply under the Supreme Court Rules 1966,
instead of the RTI Act.
·
On 10th November 2007, Subhash Chandra Agrawal filed an
RTI request with the SC asking for information concerning declaration of assets
by Supreme Court Judges, among other things. The PIO denied the request,
claiming he did not hold the information. Agrawal filed a first appeal asking
that his application may be transferred to the Public Authority holding the
information. The Registrar asked the PIO to re-consider the request, but he
denied the information again. Agrawal moved the Central Information Commission
(CIC) which in January 2009, asked the PIO to furnish the information [PDF].The
SC challenged this order twice before the Delhi High Court (HC) even as it made
some information about judges’ assets public on its website, but the HC upheld
the CIC’s ruling.
·
In 2007, N. Anbarasan filed an RTI request before the
Karnataka High Court (HC) for information pertaining to the scrutiny and
classification of writ petitions, among other things. The PIO denied the
information and asked Anbarasan to apply under the Karnataka HC Act and Rules.
Anbarasan approached the Karnataka Information Commission (KIC), which ruled in
his favor. The PIO challenged the KIC’s order before the HC, which quashed it.
Subsequently, AKM Nayak, the State Chief Information Commissioner, and a former
Additional Chief Secretary, appealed against the HC ruling before the SC. The
SC not only dismissed the appeal but fined Nayak 1 lakh rupees for “wasting
public money for satisfying their ego.” [PDF]
Although the
SC frequently agonises over governments’ lack of transparency, its own Registry
has steadfastly resisted yielding information under the Act. In the past decade
of the Act’s existence, the SC has fought many RTI applicants tooth and nail,
forcing them to the stage of second appeal. Where the CIC has ruled in favor of
the applicants, the SC has typically challenged its decisions before the Delhi
HC.
The SC has
fought these battles not for some significant intrusion of transparency, but
for routine matters such as providing pendency figures: for example, the
applicant who sought this information in 2009 had to wait until 2014 just to
get the Delhi High Court to rule that the
[PDF] SC may provide the information.
I was unaware
of the SC’s hostility towards the RTI Act, until two years ago, when I called
the office of the Assistant Registrar & PIO to confirm the address where I
should send an RTI request. For my research, I wanted a copy of the affidavits
filed in a public interest litigation (PIL) heard by the SC between 1999 and
2004.
The official
who answered my call wouldn’t identify himself, and asked me if I was party to
the case. When I answered no, he said, “We do not provide copies of the
judicial record to non-parties,” and hung up. In all my experience of seeking
information under the RTI Act, never before had an officer declined to provide
information so transparently. I called back to ask how might one access
judicial records. The official asked me to look up SC Rules 1966.
RTI Act vs
Supreme Court Rules
As I found
out after reading about several RTI cases involving the SC, referring
applicants to its own rules is a significant tool deployed by the SC to keep
the RTI Act at bay. Order XII, Rule 2 of the SC Rules 1966 [PDF] says:
“The Court,
on the application of a person who is not a party to the case, appeal or
matter, may on good cause shown, allow such person search, inspect or get
copies of all pleadings and other documents or records in the case, on payment
of the prescribed fees and charges.”
In several
ways, this rule gives the SC greater powers to withhold information from
citizens, vis-à-vis the RTI Act. Unlike the RTI act:
· The rule insists on the applicant providing a reason, and
makes the availability of information contingent upon “good cause shown.”
· It prescribes no time limit within which information is
to be provided.
·
It lists no penalties for delaying or failing to provide
the information.
·
It has no mechanisms for appeal.
These
inconsistencies have to be resolved in favour of the RTI Act as per the
non-obstante clause provided in Section 22 of the RTI Act. Yet, I found that
the SC has been maintaining that it can deny RTI requests, and limit citizens
to the SC Rules.
The SC,
represented by its Assistant Registrar and Registrar has been relying on two
ruses. First, as per the SC Rules, it was “the Court” [PDF] which could take a
decision on admitting requests to access judicial records and the humble
Registrar and the humbler Assistant Registrar could scarcely usurp the
authority of “the Court.” Second was the ruse that the RTI Act, under Section
6(3), allowed Public Authorities to frame rules to access information and the
SCR were Supreme Court’s Rules to address RTI. By this logic, the Supreme Court
had framed rules in 1966 itself anticipating the RTI Act, which came after 40
years.
The Role
of the CIC
The dispute
over RTI and SC Rules came before the CIC as early as 2006 a year after the
passage of the Act in the case of Manish Khanna vs. The Supreme Court of India.
[PDF] The appeal was heard by former bureaucrat and then Chief Information
Commissioner, Wajahat Habibullah. Ignoring the four fundamental inconsistencies
listed above, Habibullah startlingly ruled that there was “no inherent
inconsistency” between the Act and Order XII Rule 2. In his view, Rule 2 merely
provided an “alternative procedure” to access the information without denying
it in any way ignoring the “on good cause shown” condition.
With this as
the foundation, he ruled that the Rule 2 was a “special enactment,” not
superseded by a general law enacted later. This ruling established the
precedent by which the CIC has consistently ruled in favour of the SC Rules
1966 against the RTI Act.
By my rough
calculation, the SC’s refusal to provide information about judicial records
under the RTI Act has come before the CIC nearly 50 times in the last ten years
this is just counting the cases which have been decided by the CIC; many more
await a hearing. Keeping in mind that not every applicant has the time,
resources and the skills to draft first and second appeals, one can say that a
very large number of RTI requests are being summarily denied by the SC each
year conservatively speaking about 20 annually. Thus, on the back of this
ruling, the SC Registry has found a third ruse to deny information: citing the
precedent set by Habibullah’s ruling.
The only
exception to this has been a decision in 2011 by Information Commissioner
Shailesh Gandhi, who observed that Order XII curtailed the fundamental right of
citizens to free information because of the aforementioned inconsistencies. He
ruled [PDF] that the PIO must provide information subject to the provisions of
the RTI Act, and that it was up to applicants to decide whether they wished to
seek information under the RTI Act or the SC Rules.
The SC
instantly moved the Delhi HC against this ruling, where Justice S. Muralidhar
immediately stayed the matter and, further, restrained the CIC from hearing
matters on similar questions. The case remains pending before the HC. Perhaps
to do away with the criticism that rules framed in 1966 could scarcely be said
to address a landmark law enacted in 2005, the Supreme Court revised its rules
in 2013. Under SC Rules 2013, issued in August 2014, Order XII Rule 2 has
become Order XIII Rule 2 – with no meaningful difference for the
information-seeker.
Seeking
information
Despite the
nameless SC officer telling me outright that they will not provide me with
copies of the affidavits I was seeking, I decided in January 2014 to file my
RTI request anyway. For good measure, I requested the same information under
Order XII, Rule 2 as well. It would be one thing if the SC was providing
information to citizens under its own rules, but even that is not the case, as
I found out, and as others have experienced too [PDF].
The PIO
denied my RTI request and asked me to approach the Court under Order XII Rule
2, which I had already done. This second request got no reply for over a month,
at which point I followed up with the SC over the phone. After several evasive
conversations, an officer finally informed me, again, that they would not
release the information to me. When I asked the officer for her name so that I
may state this position in my first appeal, she declined and hung up.
I eventually
received a reply to my request under Order XII, Rule 2. The Assistant Registrar
(Copying) now insisted that I apply under Order XII, Rule 2 read with Order X
Rule 6(1), i.e., I present my application for information in person at the
filing counter of the Court. This additional hurdle was entirely new, as the SC
had not mentioned it before the CIC. Moreover, it is entirely inconsistent with
the RTI Act because it limits the availability of information only to those who
can make their way to the filing counter of the SC – not the easiest of tasks
for most citizens, particularly the vast majority of Indians who do not live in
Delhi.
I filed a
first appeal before the Registrar, pointing out that SC had refused information
through both the routes, and invented new hurdles to access information. The
Registrar found my appeal “to be without any merit” and dismissed it. I filed a
second appeal before the CIC in July 2014, which is yet to be scheduled for
hearing.
In my
experience of filing RTI requests with multiple public authorities, no
government body comes close to the SC in terms of contempt towards RTI
applications. This attitude seems to be pervasive in the higher judiciary. The
summary denials, fighting ordinary applicants before the CIC, and even hauling
them before the Delhi HC suggests that as far as India’s higher judiciary is
concerned, transparency is good for others, not for itself.
Aniket Aga is a PhD candidate at the Department of
Anthropology, Yale University. He tweets at @AgaAniket
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