Live Law: New Delhi: Wednesday,
June 15, 2016.
Delhi High
Court on 24th May 2016, has criticised the Legislative Department for filing un
unnecessary Writ Petition against the Order of Central Information Commission
(of M Sridhar Acharyulu, CIC) directing the Government to update and upload all
the latest amended bare Acts, to examine the functionality of its e-mail ID and
develop an appropriate RTI filing mechanism. Justice Manmohan Singh of Delhi
High Court directed Legislative Department to recover Rs.10,000/- which was
awarded as compensation by CIC, from the salary of the Government officials who
authorized the filing of this unwarranted writ petition and pay to Library.
Vansh Sharad
Gupta, a student of NLSUI, had filed this RTI application through e-mail, to
know the e-mail ID of CPIO, Legislative department. He could not access the
text of Indian Christian Marriage Act, 1972 from the website, though he could
find the Bare Act. It was impossible to read as that PDF of Bare Act was not
formatted and each sentence is intercepted by trash. He appealed to provide the
bare Acts (enactments without commentary) in a readable PDF format. The
Commission directed the Department to inform the complainant as to what action
has been taken including details of the programme of updation, the possible
date of its completion, expenditure involved, personnel employed etc. CIC had
also directed the petitioner to pay Rs.10,000/- to the library of University,
for causing loss of time of several law students, more specifically of the
appellant, not providing easy access to email, or not making email ids easily
available, delaying the information etc, within one month. The Department chose
to challenge this order in Delhi High Court.
In the writ
petition, Legislation department contended that student never filed an RTI
application in the prescribed form with the requisite fee and did not even file
first appeal. Rejecting this petition Justice Manmohan Singh held; “This Court
is not an appellate Court of the CIC. Technical and procedural arguments cannot
be allowed to come in the way of substantial justice. The directions given by
the CIC in the impugned order are not only fair and reasonable but also promote
the concept of rule of law. It is unfortunate that the petitioner did not take
the initiative on its own to upload the latest amended bare Acts. Public can be
expected to follow the law only if law is easily accessible ‘at the click of a
button’.
HC said: “In
fact, as rightly pointed out by the CIC, the RTI Act itself mandates the
Government to place the texts of enactments in public domain.This Court also
took judicial notice of the fact that in challenging the imposition of costs of
Rs.10,000/-, the Government of India would have spent more money in filing the
present writ petition. Consequently, this Court is of the view that the costs
of Rs.10,000/- which was directed to be paid by the CIC, should be recovered
from the salary of the Government officials who authorized the filing of the
present writ petition”.
Lesson 1:
It is the duty of law ministry to upload updated enactments for people.
This order is
significant because it recognized a very serious problem of state taking some
cases unnecessarily to the Constitutional Courts simply because it has power to
do so. A student of law could not find text of a particular legislation either
in private market or public domain. The Ministry could have immediately taken
note of the problem and started cleaning, updating and uploading the texts of
law.
Lesson 2:
Department has to change their systems in response to the issues raised in RTI
requests.
Prime
Minister Narendra Modi, while addressing the annual conference of CIC on RTI in
November 2015, clearly stated that the public authority should improve its
governance by using the RTI queries and responses, and then alone the purpose
of RTI will be completely achieved. In my view this suggestion of PM is as good
as a writ of a Supreme Court, and to be made mandatory. The Governments at
Center and states should initiate measures to mandate through any executive
order so that every public authority takes RTI questions very seriously and
improve its administration.
Lesson 3:
People have right to know law in their own language
The law
ministry has to tell the country what is its law. It is a commonsense point
that a citizen can follow the law only when law is made known to him. What is
the practical use of our great legal presumption that ‘law’ and ‘court of law’
presumes that every citizen knows law and refuses the defence of ignorance of
law, without doing anything to provide access to law. Another great problem is
entire law is in English, very little is available in Hindi or vernacular
languages. It is welcome that the Law Ministry is addressing this issue and taken
some initiatives to update the law in both the languages.
Lesson 4:
It is the duty of Law Ministry to disclose the law, which they want people to
follow.
The law
student in this case pointed out that the text of the law was so badly
intercepted by unnecessary sentences and marks that it is almost impossible to
detect a complete sentence from the heap of words, numbers and sentences. I
have picked up a page from the website and attached to my order to show the
sample of complexity. The inaction of state on this aspect, generates a huge
private market in publishing law texts which people have to purchase at high
cost. Advocates afford to purchase those big books transferring the cost
indirectly to the clients, but that makes an ordinary man totally dependent
upon the advocate. Section 4(1)(a) and (b) of Right to Information Act, 2005
mandates the public authority to voluntarily disclose its information to the
people without waiting for an RTI question. Here an RTI application does not
get the required response. They should have not waited for second appeal or
complaint but simply furnished the updated text of the law. Let us imagine the
loss that it caused. A student who has just five years duration in the National
Law School at Bangalore sought this in second year. The department should have
not taken more than a week to furnish the enactment copy, if not available it
could have used all the time of one month given by law. Not done. By the time
of the appeal reached CIC the student has been passed out. How a university can
research and teach future lawyers and judges without finding an authentic text
of law? The Act in question was Indian Christian Marriage Act. How the
Christian persons could perform marriage as per law, without knowing it?
Lesson 5:
Public Authority has to pay compensation for violation of Sections 4 and 3
Non-disclosure
of information as per 4(1)(b) within 120 days from commencement of Act, is
violation of RTI Act. If they continue without disclosure beyond, it becomes
continuous violation. If that is not furnished even after request under Section
3, it can be penalized under Section 20. Under Section 19(8) the IC can award
compensation also for the detriment and loss. None can exactly assess the loss
caused to entire Christian community or student community because this piece of
Christian personal law was not made available or accessible by a duty bound
public authority. Another question is who should be compensated. I did not
award this compensation to the appellant student. A token compensation was to
be paid to the library of Law University. If the Library purchases worthy books
with that money generations of students and faculty will be benefitted. A
public authority is asked to pay that money to another public authority, i.e.,
a University established by public funds. In fact the money is in public
domain, except that accounts are different.
Lesson 6:
State should not be a cantankerous litigant
But, some
officers in their wisdom preferred a writ petition to Delhi High Court. It
might have spent surely more than 10,000 to engage a lawyer, prepare a brief
etc. This is another crucial issue. Instead of performing its duty- to provide
text of law in accessible form, to disclose under S 4 of RTI Act, or honouring
the right of student to access to the text of law, right of Christian brothers
to know the law, or implement the order of CIC which reminded these rights, the
public authority preferred to extend litigation like a cantankerous
irresponsible litigant or clever lawyer. State becoming litigant is the curse
of this nation and this is the worst example. The earlier Government and
present cabinet under the leadership of Narendra Modi, several times reiterated
and declared their policy to reduce litigation by drastically cutting down the
state generated litigation. If this policy is sincerely implemented at least
fifty per cent of litigation will be off from the pendency burden of Benches,
saves huge amount of public money and relieves millions from the torture of
indecision, pendency and dependency. This again is the best example of that
torture. Let us see what the ‘appeal’ to This Inference that can be drawn is
that a public authority (Ministry of Law and Justice) is questioning the order
of another public authority (CIC) which ordered it to pay compensation to third
public authority (NLSUI Bangalore) for non-performance of public duty (to make
text of law available) and not responding to people’s right (RTI Sec 3) before
another public Authority (Delhi High Court) using public office (Standing
Counsel) paying from public exchequer, spending far more public money (than Rs
10,000) to deny the right to know of the people. Is it not a public wrong?
Lesson 7:
There is no routine appeal available from decision of Information Commission
The third significant
dimension of the issue that reflected in this order is that public authority
cannot make the Honourable High Courts as appellate courts over IC. They cannot
raise inconsequential procedural or technical points to assail an order of
Information Commission without looking into substantive justice the order was
rendering. Hope that the Ministry of Law and Justice will not take this issue
further to Supreme Court and concentrate on making the law accessible to the
people.
(Professor
Madabhushi Sridhar is a Columnist, Media Law Researcher and Central Information
Commissioner.)
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