The Wire: New
Delhi: Wednesday, 11 March 2020.
The
Supreme Court has recently delivered a judgment in Chief Information
Commissioner vs High Court Of Gujarat on March 4, 2020. It is likely to have a
very negative implication on the citizen’s fundamental Right to Information.
The court has ruled that if a citizen wants copies of judicial proceedings, she
cannot get it through an RTI request.
All
high courts and the Supreme Court have certain rules for conducting their
proceedings. Most of them have had a rule stating that parties in a suit may
get copies relating to their case. However, those who are not parties to the
suit may obtain them if they give an affidavit stating their reasons for
seeking this information. If the court is satisfied with the reasons, it would
provide it.
This
violates the basic premise that all information in government belongs to the
citizens and they have a right to access it.
The
RTI has been accepted as a fundamental right of citizens under Article 19
(1)(a). This covers the right to free speech, right to publish and right to
information. A citizen does not have to give reasons for exercising any of
these, though some reasonable restrictions can be imposed on them, as laid down
in Article 19 (2). In line with this, the RTI Act has specific exemptions under
section 8 in the Act and only those exemptions can be used to deny information
to a citizen. To ensure that other laws and constraints could not be used to
deny information to the rulers of democracy the citizens parliament
provided a non-obstante clause in Section 22:
“The
provisions of this Act shall have effect notwithstanding anything inconsistent
therewith contained in the Official Secrets Act, 1923, and any other law for
the time being in force or in any instrument having effect by virtue of any law
other than this Act.”
This
clearly means that the RTI Act will prevail over all laws and rules, including
the Official Secrets Act, as far as providing information in RTI is concerned.
It does not mean that the Official Secrets Act or other Acts are repealed. When
a request for information is filed under the RTI Act, it can be denied only if
under the provisions of the RTI Act.
The
apex court’s judgment does not clearly identify how it has concluded that the
Supreme Court and high court rules are not inconsistent with the RTI Act.
Instead, the court has concluded that if any law or rule provides for the
release of information, it would be held to be consistent with the RTI Act.
This is clearly erroneous. The Court
should have noted the following inconsistency of the court’s rules:
- In the RTI Act, no locus is required, whereas the court’s rules differentiate those with locus.
- RTI clearly states that no reasons can be sought for seeking information, while the court rules require filing an affidavit giving reasons for those who are not a party.
- The information may not be provided by the court if ‘good cause’ is not shown. In RTI, information may be denied only if it falls in the exemptions in section 8 or 9.
- There is no appeal process to an independent Information Commission in the court rules.
This
ruling could subvert the RTI Act very seriously. Various public authorities
could make the RTI Act irrelevant by creating their own rules for giving
information. This ruling also violates a basic premise that if there is more
than one route for an activity, it is the citizen’s choice to chose the route.
It
is worth noting that the Supreme Court in CIT v A. Raman & Co (1968), which
was upheld in CIT v Calcutta Discount Co. Ltd (1973) and subsequently in UOI v
Azadi Bachao Andolan (2003), observed as follows:
“…
Avoiding of tax liability by so arranging commercial affairs that charge of tax
is distributed is not prohibited. A tax payer may resort to a device to divert
the income before it accrues or arises to him. Effectiveness of the device
depends not upon considerations of morality, but on the operation of the Income
Tax Act. Legislative injunction in taxing statutes may not, except on peril of
penalty, be violated, but it may be lawfully circumvented…” (Emphasis Added)
Therefore,
even when the state may lose revenue, the Supreme Court has ruled that an individual
taxpayer has the liberty to arrange her commercial affairs in order to reduce
her tax liability, so long as such arrangement is within the operation of
legislation. Drawing an analogy, it certainly stands to reason that a citizen
should be able to decide on the method most convenient and expedient by which
she wants to obtain information.
The
Supreme Court, on various occasions, has ruled that it is incumbent on public
sector institutions to be model employers following all laws in letter and spirit.
It is humbly submitted that the Supreme Court should become a role model in the
implementation of the provisions of the Right to Information Act, 2005 in its
true letter and spirit and inspire all public authorities to follow its lead in
transparency.
This
would certainly enable better delivery of the citizen’s fundamental right to
information. The apex court has consistently widened the scope of Article 19
(1)(a) for freedom to speak and publish. We hope it will not treat RTI
inconsistently.
(Shailesh
Gandhi, former central information commissioner.)
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