Live Law: New Delhi: Thursday, May
12, 2016.
The two Judge
Bench of the Supreme Court of India today has made certain significant
observations relating to transparency, right to information and openness in
Governance. The Bench comprising of Justices Kurian Joseph and RF Nariman while
declaring the Telecom Consumers Protection (Ninth Amendment) Regulations, 2015
ultra vires the TRAI Act and violative of Articles 14 and 19(1)(g) of the
Constitution, has held that the Right to Information Act of 2005 has gone a
long way to strengthen democracy by requiring that the Government be
transparent in its actions, so that an informed citizenry is able then to
contain corruption, and hold Governments and their instrumentalities accountable
to the people of India.
The Bench
opined that subject to certain well defined exceptions, it would be a healthy
functioning of our democracy if all subordinate legislation were to be
“transparent”.
Under Section
4(1) of RTI Act, every public authority is not only to maintain all its records
duly catalogued and indexed but is to publish, within 120 days from the
enactment of the said Act, the procedure followed by it in its decision making
process, which includes channels of supervision and accountability. Under
Section 8, there is no obligation to give to any citizen information disclosure
of which would prejudicially affect the sovereignty and integrity of India, the
security of the State etc. Subject, therefore, to well-defined exceptions,
openness in governance is now a legislatively established fact.
Justice RF
Nariman who wrote the Judgment urged the Parliament to take up this issue and
frame a legislation along the lines of the U.S. Administrative Procedure Act
(with certain well defined exceptions) by which all subordinate legislation is
subject to a transparent process.
“We find
that, subject to certain well defined exceptions, it would be a healthy
functioning of our democracy if all subordinate legislation were to be
“transparent” in the manner pointed out above. Since it is beyond the scope of
this judgment to deal with subordinate legislation generally, and in particular
with statutes which provide for rule making and regulation making without any
added requirement of transparency, we would exhort Parliament to take up this
issue and frame a legislation along the lines of the U.S. Administrative
Procedure Act (with certain well defined exceptions) by which all subordinate
legislation is subject to a transparent process by which due consultations with
all stakeholders are held, and the rule or regulation making power is exercised
after due consideration of all stakeholders’ submissions, together with an
explanatory memorandum which broadly takes into account what they have said and
the reasons for agreeing or disagreeing with them. Not only would such
legislation reduce arbitrariness in subordinate legislation making, but it
would also conduce to openness in governance. It would also ensure the
redressal, partial or otherwise, of grievances of the concerned stakeholders
prior to the making of subordinate legislation. This would obviate, in many
cases, the need for persons to approach courts to strike down subordinate
legislation on the ground of such legislation being manifestly arbitrary or
unreasonable”, states the Judgment.
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