Legally
India: New Delhi: Tuesday, 08 December 2015.
The Chief
Information Commission passed an order dt. 08.08.2015 in Rama Aggarwal v. Delhi
State Legal Services Authority holding that
notwithstanding that the Right to Information Act, 2005 overrode the provisions
of the Arbitration and Conciliation Act, 1996, conciliation proceedings were
confidential in nature and that the Public Information Officer was not bound to
disclose information relating to, or pertaining to, conciliation proceedings in
view of Sections 8(1)(e) and 8(1)(j) of the Right to Information Act, 2005.
Factual
Background:
Anil and Rama
Aggarwal had marital issues and were referred to the Delhi State Legal Services
Authority for counselling and conciliation. Later, Rama Aggarwal filed
proceedings under the Protection of Women from Domestic Violence Act, 2005 and
for divorce. Rama Aggarwal filed an RTI application seeking, among other
things, information pertaining to the conciliation proceedings before the Delhi
State Legal Services Authority. The PIO of the Delhi State Legal Services
Authority and the First Appellate Authority rejected the application (in
respect of those queries on the conciliation proceedings).
Question
before the CIC:
On appeal,
the CIC had to decide whether the PIO and the First Appellate Authority were
wrong in denying information on conciliation-related proceedings.
Decision
of the CIC:
The CIC took
into consideration the relevant provisions under the Hindu Marriage Act, 1955,
the UNCITRAL Conciliation Rules (Article 14), the Arbitration and Conciliation
Act, 1996 (Sections 70, 75 & 81), the (Delhi) Mediation & Conciliation
Rules, 2004 (Rules 20 and 21) and the decisions of the Supreme Court in Haresh
Dayaram Thakur v Maharashtra AIR 2000 SC 2281
and Moti Ram v. Ashok Kumar.
The CIC,
after discussing Section 75 of the Arbitration & Conciliation Act, 1996
(1996 Act) which provides that notwithstanding anything to the contrary, the
parties shall keep all matters relating to the conciliation proceedings
confidential, stated that the RTI Act will definitely override the 1996 Act
(irrespective of the non-obstante clause).
At the same
time, the CIC held that conciliation proceedings would be exempt from disclosure
on the ground that information in conciliation proceedings were made available
in conciliation proceedings owing to the fiduciary capacity of the conciliator
(and the institution administering conciliation).
The CIC
held:
"As per
the traditional definition, a ‘fiduciary’ is a person who occupies a position
of trust in relation to someone else, therefore requiring him to act for the
latter's benefit within the scope of that relationship. Anything given and
taken in confidence expecting confidentiality to be maintained will be
information available to a person in fiduciary capacity. Therefore
communication made during conciliation proceeding between the parties and also
communication between mediator and other parties, qualifies to be made in fiduciary
capacity."
Hence, the
Court held that the PIO could refuse disclosure of information under Section
8(1)(a) of the RTI Act, which exempts disclosure on the ground that the
information was made available to a person in his fiduciary relationship.
The CIC also
held that the proceedings of mediation related to personal information and the
disclosure of the same would cause unwarranted invasion of the privacy of the
individual concerned, which is a ground for refusing information under Section
8(1)(j) of the RTI Act.
The CIC also
recognised that disclosure of such information on account of larger public
interest was allowed but held that it was in larger public interest that
alternative dispute resolution (including mediation) proceedings are kept
confidential. The CIC held that if mediation proceedings are allowed to be
disclosed under the RTI Act, this would result in the parties not adopting such
mechanisms thereby resulting in the burdening of the courts. The CIC also held
that conciliation proceedings would also include counselling proceedings
between spouses.
On the basis
of the above reasoning, the CIC rejected the appeal.
Key
Takings:
The decision
is correct in holding that mediation proceedings between private persons cannot
be disclosed under the RTI Act as this would result in invasion of privacy and
persons choosing court based dispute resolution. One of the chief reasons for
choosing mediation and other ADR mechanisms is confidentiality. However,
question arises whether mediation proceedings between the State and a private
person could be afforded the same protection. The question is complicated and
requires consideration but this blawgger would lean in favour of disclosure at
least after the resolution of the dispute between the State and the private
person.
Secondly,
Section 22 of the RTI contains a non-obstante clause; so does Section 75 of the
1996 Act. Despite the conflict, the CIC did not provide justification(s) why
the RTI Act overrode Section 75 of the 1996 Act. Nevertheless, the decision of
the CIC is correct. Perhaps, it could have justified the same by referring to
the ratione of the RTI Act and that the RTI Act was a later law.
The CIC has
rightly balanced the need for confidentiality of mediation proceedings and the
requirement of disclosure under the RTI Act.
A subsidiary
point is that the CIC has stated that conciliation and mediation are
interchangeable expressions thereby adding another authority on the vexing
distinction between conciliation and mediation in Section 89 of the Code of
Civil Procedure, 1908.
.JPG)
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