Live Law: New Delhi: Thursday,
November 17, 2016.
Ambiguity is
antidote of transparency. Mystery of legal language takes out the possibility
of realization of the right and leaves scope for contradictory interpretations
facilitating injustice. The Authentic Book on RTI by Sri Shailesh Gandhi and
Sri Pralhad Kacheri is easily accessible because it is copyleft, (i.e., not
copyrighted) and it is also easy to read and understand. (Note: The hard copy
of the book is priced)
The authors
introduced transparency into RTI Act by removing the ambiguities that crept in
because of legalese and its multiple interpretations. The authors strongly
pleaded, in preface, for implementation of the RTI Act with positive
interpretation of its ‘expression’ as passed by the Parliament. This means that
the interpretation contradictory to expressions of the Act on the face of it,
if done by any authority like Information Commissions or constitutional courts,
should not become impediments in disclosure of information held by the public
authorities.
The book
raised certain critical constitutional challenges.
Finality
of Commission’s order
No scope
for unending appeals:
A critical issue brought out by this book is that whether RTI request should be
converted into an ordinary litigation resulting in ‘adjourning’ the finality
landing in labyrinths of cases before Constitutional Courts or should it assume
finality with the Commission. Whether second appeal should lead to 3rd, 4th and
5th appeals also?
Finality
and binding nature:
Section 19(7) talks about binding nature of the Commission’s order, while
Section 23 provided finality to its action. The demand for information
generally ends with the RTI Act in second appeal. No further proceedings are
contemplated. The judicial review is an additional constitutional remedy
available in general, though not mentioned under this Act. The author raised a
vital point of constitutional importance that writ under Article 226 cannot be
used as ‘third appeal’. There is a slight but definite difference between Article
226 petition for writ of certiorari and the non-existing third appeal.
Sometimes this line is getting blurred. That is the matter of the judicial
process, and beyond the domain of the Commission. Of course, citizens are free
to research examine and challenge whether any ‘difference’ is maintained.
State, a
big litigant: In foot
note 47, the author brought out an important aspect stated by Maria Elena Peris
Jean, the former Information Commissioner from Mexico, whether the public
authority can file writ petition only in security related matters and in all
other matters only denied citizen could litigate in Constitutional courts. This
challenge is worth considering in Indian context where the State is found to be
biggest litigant, as agreed by the Prime Minister on 2nd November 2016 and
endorsed earlier by the Law Commission and National Litigation Policy.
The
Need for Judicious interpretation
Parliament’s
Constitutionally valid will:
If the Parliament’s intention is clearly stated in the simple language of the
enactment, which was passed unanimously, assumed to be the will of 594 MPs and
130 crores of people, and when the principles of transparency and RTI were
accepted as Constitutionally compatible with the declared and guaranteed
fundamental rights, can any authority, including judiciary, give an
interpretation contrary to that will of the people? If given, is that valid?
This is the most agitating question posed time and again.
The
Precedent vs Express Legislation:
Article 141 makes it clear that it is the judiciary that decides what the law
is, though Parliament stated it through that ‘expression’. It is an age-old
conflict between two prominent Estates in any Constitutional Democracy-
Legislature v. Judiciary. The established practice is that the interpretation
by the Constitutional court will prevail over the written text. It is based on
the jurisprudential principle of precedent. Article 141 is the codification of
this rule. The sources of law include law made by legislation and precedent,
besides ‘custom’. This being the position, the meaning of law however simple or
reasonable we might assume, will be subjected to the interpretation given by
the constitutional court. The power of review under Article 226 and 32 is the
basic structure of the Constitution, and the judgment given while exercising
that power, is the law (Article 141). This position is not negotiable.
Presumption
of correctness of order:
There is another interesting principle – presumption of correctness of
judgment. Unless the ‘wrong’ (so assumed) judgment of SC is reversed in review
with such declaration, the ‘wrong’ judgment will prevail as right judgment by
default. It’s unfortunate that such interpretation remains ‘authentic’. However
there is a need for discussion, criticism and pointing out the glaring mistakes
both the legislative and judicial declarations that always being the source of
the ‘change’.
Whether the
precedent continues to be the source simultaneously with the specific law is
present? The book certainly raised such issues, which are worth debating and
taking to their logical end. One should do enough field work to find an
appropriate case to question the inappropriate meaning given to the plain text
of RTI Act to guide authorities under RTI Act properly. Perhaps the book is the
first step in that process.
No
reference to conflicting orders:
The authors meticulously avoided references to judicial decisions, including
the controversial orders which they might have not agreed. As the book is not
studded with the citations and quoted paragraphs or rhetoric of judgments or of
Commission’s orders, the book offers a smooth and continuous reading. That way
the utility of the book is increased. It is a simple primary on RTI in India,
with explanations and some critical insights.
The
Constitutional conspectus of RTI
The RTI Act
cannot limit the Freedom of Expression as provided in Article 19(1)(a) of the
Constitution. Section 8 of RTI Act should be compatible with Article 19(2),
where grounds for reasonable restrictions listed out. This list is exhaustive,
which means new cannot be added. If there is any addition or conflict whether
by law passed by Parliament or Judicial precedent, such conflicting provision
needs to be challenged. If exemptions on RTI create an additional ground for curbing
expression freedom, it cannot sustain. It has to be removed in review.
Similarly
right to life and judicial review of legality of detention within 24 hours
should not conflict with RTI regarding life related information. The 48 hour
limit needs to be restricted to 24 hours to make it compatible with Articles 21
and 22 of the Constitution, as Parliament cannot indirectly restrict this
fundamental right through RTI Act without properly amending the Constitution.
And this cannot be amended as it was part of the basic structure of the
Constitution. The Authors have deliberately omitted any attempt to enter into
such conflicts and avoided the suggestions to change the law also. That is
fine. But if required, it has to be done.
Constitutional
Significance of RTI
The authors
rightly stated that Freedom of Expression cannot be effectuated fully without
RTI. It can be further stretched. The liberty of thought is the source of
expression. And thought freedom is useless without access or right to
knowledge, which was not directly guaranteed by the Constitution. Just one
miniscule part of right to know, i.e., right to information, truncated in
myriad forms of expression and exemptions was codified in RTI Act. That itself
is a mini-revolution in this limited sphere of democracy. The RTI is essential
for right to life, which indirectly includes in its rubric the right to
knowledge. The freedom of speech and expression is wide enough to include right
to information. The right to equality under Article 14 imposes a mandate on the
state to create equal access to knowledge and information, freely express and
lead a living life. The golden triangle of Fundamental Rights, 14, 19 and 21
cannot be realized without the support of specifically guaranteed statutory
right to information. The RTI enables the Article 14, enlivens Article 21 and
empowers Article 19. Without any fear of contradiction one can say that the RTI
is vital for achieving all fundamental rights. If Article 32 (and Article 226)
is a right to remedy, the RTI is tool to reach that remedy.
Tool to
achieve new rights
Many new
rights are emerging in the current international scenario, like right to
development, right to service from state, right against corruption and the
right to good governance, which are being recognized and demanded, the RTI
assumes more significance as an essential requirement to make every citizen a
vigilant member of democratic republic. The theme of participation of citizen
in the governance as envisaged by the preamble is well in tune with objectives
of participative democracy, to make it vibrant. Undoubtedly eternal vigilance
is the price of democracy. Such vigilance is possible with the effective access
to information.
Uniformity
of Rules
The rule
making power given to Competent Authority is limited to the contours of RTI law
and if the rules are not within that frame, the law will prevail. The
conflicting rules ruin the right. The author rightly advised uniformity in fee
rules among various public authorities.
Access
to information of private bodies
Authors
raised a very pertinent issue, whether under Section 2(f) the authority has to
provide the information which it could access or should it acquire it and
provide to seeker. Mr. Satyanand Mishra, former CIC says it should be confined
to the scope of particular law that provides the access. Mr. Toby Mendel,
expert on international transparency is of the opinion that if the context
demands and the regulatory body have a duty to seek information from private
body, it has to do that to give it to information seeker. Whether to confine
the access to information already ‘held’ or go beyond it to ‘acquire’ more,
thus depends on nature of the information sought, character of private body,
the requirement of regulation as prescribed by law etc.
In a privatized
democratic economy, the regulation is an essential source of good governance.
If regulatory cannot perform its function properly, the citizen shall question.
For that, he needs information which private body naturally deny, but the
information that private body need to give for the purposes of regulation must
be accessible to the people. Accessed information and acquirable information
depends on several such issues. It is a dynamic and open question.
Adding
illegal pre-fixes in definition of Public authority
Can anybody
add prefixes or adjectives to expressions used in the definition of ‘public
authority’ under RTI Act? The author questioned the introduction of adjectives
(prefixes) like ‘complete’ or ‘pervasive’ to the legislative expression ‘control
‘, which provides lot of space for several public bodies to escape from the
definition of public authority. Similarly there are diverse comments on
‘substantial finance’. The discussion on ‘public authority’ is to be taken
forward further. Suggestion on ‘right to information’ definition is valid.
Suo
motu disclosure & No Suo Motu powers
The law took
care of transparency, but Section 4 is very significant for bringing
transparency in the governance, but not totally comprehended and utilized its
complete potential by the public authorities. If implemented, this section can
reduce the numbers of RTI to a bare minimum. This section incorporates
principles of service, good governance, citizen charters, redressal of
grievances, and complaints taking mechanism with time bound resolution etc. But
as per the law, Section 4 is not enforceable by the Commission. The civil
society, individual citizens and state have a definite role in getting it
realized. Authors’ comments, opinion of Mr Mishra and Mr Toby indicate this
need. But the law did not provide any powers to the Commissions to secure the
implementation of the provisions transparency under Section 4. It is left to
the voluntary wisdom of the executive wings of the Governments, instead of
giving suo motu powers to the Commission to check or direct the implementation
of the disclosure norms.
Demanding
Reasons
Law mandates
the public authority should not demand the reasons for RTI request. It was
right in the sense that it should not be a ground for acceptance of RTI
Request. If reasons are required to be given, the public authority will get
power to sit in the judgment over reasonability of reasons and retain
discretion to reject the RTI requests. There is a practical need to consider
whether a background statement or purpose for demand for information should be
voluntarily disclosed by the applicant. When most of the information requests
are based on either complaints or grievances, it is necessary to know it for
effective dispensation of information requests. More over at three levels, PIO,
FAA and second appeal, it is necessary to decide the issue of ’public interest’
wherever required by law. Public interest is a factor to examine the invocation
of exceptions, and third party information as prescribed under Sections 8 and
11. A brief statement of background will help the PIO to understand the need
and kind of information to be given. Authors and experts clarified that the
applicant of BPL status need not pay any kind of fee or additional fee.
Exceptions
and the denials
Limitation
on exception clause:
The PIO has to state grounds of rejection, under Section 7. And if the PIO
depends on any exception under Section 8, he has a duty to justify. Mere
mentioning of exception number is not enough. Under 8(1)(b), the ‘pendency’ of
litigation in courts or sub judice is not a defence or exception to deny the
information. Only that information disclosure of which is prohibited by law
cannot be given. The book has simplified certain important expressions used in
exception clauses and explained in lucid manner. It will help the interpreters
and users of the law.
Disclosure
norm in exceptions:
The exception regarding cabinet decisions is not really an exception but an
enabling provision explaining the time of disclosure. Section 8(1)(i) (cabinet
decisions) cannot be used to deny the information. It imposes a duty on the
state to disclose on its own. It supplements the disclosure obligations in
Section 4(1)(c) and (d). A reading of two provisions together increases the
responsibility to disclose rather than withholding. Once decision is made,
entire information regarding that has to be disclosed. The commentary on
Section 8 is comprehensive and useful.
Third
party information? Section
11 prescribes a procedure and not an exemption. What is the meaning of
information relates to or supplied by third party? This is an important
question that demands proper explanation. Most of the times the PIOs are
rejecting information as ‘third party’ information, without following the
procedure prescribed. Secondly, the PIOs just deny the information the moment
the objection is registered by ‘third party’. This needs to be addressed
exhaustively. The authors made best attempt. It still falls short.
Alternative
scope of access If
any other public authority has different access mechanism under different law
or rules, it is not affected by this Act as long as there is no conflict. Then
the problem rightly noticed by the authors is that the public authority denies
the RTI and advice him to come under alternative route. The citizen has a
choice, not the public authority. If information sought under RTI Act could be
given under that law, and also under other law, it has to be disclosed as per
RTI Act. Existence of other procedure or rules or law providing access is not a
defence to deny under RTI.
Constructive
suggestions of the Authors
The authors
need to be appreciated for accommodating the views of other experts, without
expressing any agreement or disagreement. That is in tune with the democratic
norms and constitutional righteousness.
The authors
deserve all appreciation, as they sacrificed their copyright or consequential
benefits in true spirit of transparency and practice of openness. The book is
available online with easy accessibility. It certainly reaches more than the
print copy of the book could and sparks the thinking among various stake
holders. The print copy, which is released recently, also will kick up
discussion effectively.
The Authors
suggested National Colloquium to discuss and debate the RTI Act and its
implementation, which was ranked 66th, though the draft was rated as third best
in the world. None can disagree with this suggestion. It is the need at this
11th year of working of RTI Act. (11th November 2016)
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