The Wire: New Delhi: Tuesday, 05 October 2021.
In legal proceedings, appeals are being masked as writ petitions in high courts to obtain stays on Right to Information Act (RTI) orders of various information commissions, claimed former central information commissioner (CIC) Shailesh Gandhi, adding that this is being done in violation of the law, the constitution and even Supreme Court judgments.
Gandhi, who had last month initiated an effort along with other former information commissioners to appeal to the chief justice of India to stop the alleged misuse of the writ jurisdiction, said, “I strongly believe that most statutory decisions should not be stayed without reasoning.” But when it comes to the RTI Act, he said, “a lot of the decisions of the commissioners get stayed in court. And then they go into a 5-10-15 year process this is when an average citizen is not even able to go to courts and fight the case.”
Gandhi said the reason behind the malaise lies in the fact that “public authorities normally do not want to give information or they do not even want to accept that they are public authorities. So, they go to court and try get a stay. Broadly, there are thousands of matters that get stayed like this.”
The former CIC said what is worrisome is that challenges against Commission rulings were being admitted in violation of the law. “The RTI Act says categorically that no appeal is possible beyond the Commission for RTI. So, no court, by law, can hear an appeal against an Information Commission. High courts have writ jurisdiction. It has been defined in various Supreme Court judgments. In fact, one of the judgments went to the extent of saying that even a wrong decision cannot be corrected by a writ jurisdiction.”
The letter had also referred to this aspect stating that according to Section 23 of the Right to Information (RTI) Act, 2005, “no court shall entertain any suit, application or other proceedings in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.”
It had stated that “thus parliament clearly intended that the final appeal will lie with the Information Commissions”.
He further claimed that “this is all being flouted and stays are being granted with great ease. This is very damaging for the RTI Act.”
He insisted that appeals are being masked as writs to obtain relief from courts. “At the time of granting a stay the court should apply its mind and see if it falls under writ jurisdiction. As a commissioner I have seen in some cases, where a petition is filed to stay the Commission’s orders, the lawyer would have written ‘appeal’ but later applied white ink and changed it to ‘writ’. The point is that the courts also understand that most of these are appeals.”
Areas of concern
The former CIC said “even penalty orders are stayed despite their basically being dependent on the facts of the case which cannot be looked at in writ jurisdiction.”
“There are several Supreme Court judgments which say that reasoning must be given for any order, including an administrative order. So when they are staying a statutory order, they should give a reason as to how it falls under writ jurisdiction,” he added.
He added: “There are also Supreme Court orders which say that when a stay is given there is some irrevocable harm that is likely to occur in the absence of a stay. If a public information officer (PIO) pays a penalty, say he deposits Rs 25,000, and suppose he wins the case in court. Then the government will refund the amount. So there is no irrevocable harm. In my opinion, courts cannot listen to such appeals against imposition of penalty. It is completely illegal.”
Another area of concern for the former information commissioners was that the duration of stays allowed as per law was being violated. “There is also a constitutional provision 226(3) which says that if a stay is given without hearing the other party, then within 15 days the matter must be settled by the court. And if it is not settled then the stay stands automatically vacated. A couple of years ago there was also a Supreme Court judgment which said a stay was only for a six-month period,” he said, adding that these laws and provisions were not being implemented.
The letter to the CJI had also stated that Article 226(3) of the Constitution lays down that where a stay has been obtained without the participation of the respondents, the high court shall dispose of the application within two weeks from the date on which the petition for vacation of the stay is made. If this is not done, the stay stands vacated. It had claimed that this was, however, not being implemented across the nation.
On why the need to appeal to the CJI was felt instead of filing a PIL, Gandhi said, “Going and filing a PIL would have meant ‘God knows how many years!’. The result could possible take longer than my lifetime. Here, if the CJI is convinced there is a cause, he can take suo motu cognisance and convert it into a PIL and listen to it.”
Gandhi said they are still awaiting a response in the matter.
In legal proceedings, appeals are being masked as writ petitions in high courts to obtain stays on Right to Information Act (RTI) orders of various information commissions, claimed former central information commissioner (CIC) Shailesh Gandhi, adding that this is being done in violation of the law, the constitution and even Supreme Court judgments.
Gandhi, who had last month initiated an effort along with other former information commissioners to appeal to the chief justice of India to stop the alleged misuse of the writ jurisdiction, said, “I strongly believe that most statutory decisions should not be stayed without reasoning.” But when it comes to the RTI Act, he said, “a lot of the decisions of the commissioners get stayed in court. And then they go into a 5-10-15 year process this is when an average citizen is not even able to go to courts and fight the case.”
Gandhi said the reason behind the malaise lies in the fact that “public authorities normally do not want to give information or they do not even want to accept that they are public authorities. So, they go to court and try get a stay. Broadly, there are thousands of matters that get stayed like this.”
The former CIC said what is worrisome is that challenges against Commission rulings were being admitted in violation of the law. “The RTI Act says categorically that no appeal is possible beyond the Commission for RTI. So, no court, by law, can hear an appeal against an Information Commission. High courts have writ jurisdiction. It has been defined in various Supreme Court judgments. In fact, one of the judgments went to the extent of saying that even a wrong decision cannot be corrected by a writ jurisdiction.”
The letter had also referred to this aspect stating that according to Section 23 of the Right to Information (RTI) Act, 2005, “no court shall entertain any suit, application or other proceedings in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act.”
It had stated that “thus parliament clearly intended that the final appeal will lie with the Information Commissions”.
He further claimed that “this is all being flouted and stays are being granted with great ease. This is very damaging for the RTI Act.”
He insisted that appeals are being masked as writs to obtain relief from courts. “At the time of granting a stay the court should apply its mind and see if it falls under writ jurisdiction. As a commissioner I have seen in some cases, where a petition is filed to stay the Commission’s orders, the lawyer would have written ‘appeal’ but later applied white ink and changed it to ‘writ’. The point is that the courts also understand that most of these are appeals.”
Areas of concern
The former CIC said “even penalty orders are stayed despite their basically being dependent on the facts of the case which cannot be looked at in writ jurisdiction.”
“There are several Supreme Court judgments which say that reasoning must be given for any order, including an administrative order. So when they are staying a statutory order, they should give a reason as to how it falls under writ jurisdiction,” he added.
He added: “There are also Supreme Court orders which say that when a stay is given there is some irrevocable harm that is likely to occur in the absence of a stay. If a public information officer (PIO) pays a penalty, say he deposits Rs 25,000, and suppose he wins the case in court. Then the government will refund the amount. So there is no irrevocable harm. In my opinion, courts cannot listen to such appeals against imposition of penalty. It is completely illegal.”
Another area of concern for the former information commissioners was that the duration of stays allowed as per law was being violated. “There is also a constitutional provision 226(3) which says that if a stay is given without hearing the other party, then within 15 days the matter must be settled by the court. And if it is not settled then the stay stands automatically vacated. A couple of years ago there was also a Supreme Court judgment which said a stay was only for a six-month period,” he said, adding that these laws and provisions were not being implemented.
The letter to the CJI had also stated that Article 226(3) of the Constitution lays down that where a stay has been obtained without the participation of the respondents, the high court shall dispose of the application within two weeks from the date on which the petition for vacation of the stay is made. If this is not done, the stay stands vacated. It had claimed that this was, however, not being implemented across the nation.
On why the need to appeal to the CJI was felt instead of filing a PIL, Gandhi said, “Going and filing a PIL would have meant ‘God knows how many years!’. The result could possible take longer than my lifetime. Here, if the CJI is convinced there is a cause, he can take suo motu cognisance and convert it into a PIL and listen to it.”
Gandhi said they are still awaiting a response in the matter.
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