RTI: Disclosure of information on consultations about Lok Sabha Secretary General’s tenure not breach of privilege of Parliament, says Delhi High Court

[dropcap]T[/dropcap]HE Delhi High Court has, in a landmark judgment, held that the disclosure of information pertaining to consultations among the Leader of the Opposition, the Leader of the House and the Speaker of the Lok Sabha about the extension of tenure of the Lok Sabha Secretary General does not constitute a breach of privilege of Parliament under Section 8(1)(c) of the Right to Information Act, 2005 (RTI Act).

The High Court in its ruling on July 2, 2019 also held that the Central Information Commission (CIC) could not abdicate its statutory duty by leaving it to the Lok Sabha Speaker to decide whether the information sought on the matter by an RTI applicant constituted privileged information.

 

Section 8(1)(c) of the RTI Act reads as follows-

Section 8 Exemption from disclosure of information (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-

(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature

 

Background of the case

 

Noted RTI activist Subhash Chandra Agarwal had on September 1, 2011,  sought information from the Lok Sabha secretariat pertaining to the extension of the tenure of the then Lok Sabha Secretary General T K Vishwanathan. Agarwal was, however, denied information on the consultations held on the issue by the Speaker of the Lok Sabha with functionaries of the House – in this case, the Leader of the Opposition.

The Central Public Information Officer (CPIO) denied the information saying that its disclosure could amount to a breach of parliamentary privilege, thereby giving it the protection of Section 8(1)(c) of the RTI Act.

On an appeal by Agarwal before the CIC, it held on February 20, 2013, that the Speaker would be the authority to determine the question of privilege. Therefore, the CIC would place the relevant file before the Speaker of the Lok Sabha for instructions and if the Secretariat claimed privilege, it would clearly state the nature of the privilege claimed under Article 105 of the Constitution of India.

Pursuant to the CIC’s directives, the matter was placed before the Speaker on March 26, 2013, who decided against the disclosure of the information, as it would, according to him, be a breach of parliamentary privilege under Article 105(3) of Constitution of India.

 

Appeal before the High Court

 

Agarwal then challenged the decisions of the CIC and Lok Sabha Speaker before the Delhi High Court, which in turn, framed the following five questions for determination:

  • Does parliamentary privilege as understood within the meaning of Article 105(3) of the Constitution of India apply to the information sought?
  • Does the inter se communication and consultation between the Leader of the Opposition, Leader of the House and the Speaker form part of proceedings in Parliament in relation to which parliamentary privilege may be claimed;
  • What are the boundaries and contours of the right to receive information under the RTI Act vis-a-vis a claim of parliamentary privilege;
  • Under the RTI Act who is the arbiter of whether a claim of parliamentary privilege ‟is tenable in relation to a given subject matter in the context of an RTI query; and
  • Does the direction contained in CIC’s order dated 20.02.2013, whereby it has been left to the Speaker to decide if parliamentary privilege is to be claimed in relation to the information sought, amount to abdication by the CIC of its role under the RTI Act ; or, putting it alternatively, does it amount to the CIC delegating its power under the RTI Act to the Speaker.

Justice Anup Jairam Bhambhani, after discussing several judgments both from the Supreme Court of the United Kingdom and the Supreme Court of India on the extent of the powers, privileges and immunities that are available to members of parliament, stated that the information was not exempt from disclosure and that the RTI applicant’s statutory right to the information trumped the plea of parliamentary privilege.

“I am of the view that information in relation to consultation and communications that went-on between the Leader of the Opposition, the Leader of the House and the Speaker in relation to the extension of the Secretary General’s term enjoys no exemption from disclosure, much less on the ground of parliamentary privilege; and ought to have been disclosed.

“I am also of the view that since the plea of parliamentary privilege affects the petitioner’s statutory right, to receive information which is founded on a fundamental right, the claim of privilege is amenable to judicial review by his court. I also hold that in this case the petitioner’s statutory right to information must trump the plea of parliamentary privilege since the latter must be construed so as to confine it to cases were it is necessary for preserving and protecting legislative function”.

Justice Bhambhani said the Speaker’s role as the administrative head of the Lok Sabha Secretariat could not be considered a legislative function in any manner.

“…while administering the Secretariat, the Speaker does not engage in any legislative or parliamentary role: the Speaker does not moderate any parliamentary debate; nor does he receive any bills or motions tabled in the House; nor does he call to vote any bills or motions so moved; nor does he discipline, disqualify or otherwise monitor the actions or omissions of any Members of the House; nor does he perform any role that is directly related to the core function of the House, namely the law-making function…,” he said.

By the very nature and intent of the statute, the RTI Act must be construed in a manner so as to advance its purpose, Justice Bhambhani said.

On CIC’s obligation under RTI Act to decide issue of parliamentary privilege

 

The petitioner had argued that it was incumbent upon the CIC to decide the question of parliamentary privilege and to issue an unequivocal directive to disclose or answer the queries raised; the CIC could not have relegated the issue of “privilege”to be decided by the Speaker.

Agreeing with Agarwal, the high court held that the CIC was tasked with deciding whether the information sought in a given case was to be disclosed or was covered by any one or more of the exemptions under section 8(1) of the RTI Act.

The exemption contained in section 8(1)(c) –  whether disclosure would amount to breach of privilege of Parliament or of the State Legislature –  was just another ground for exemption and there was no reason to treat it differently from any of the other grounds. The CIC must therefore decide this question just as it would the applicability of any of the other exemptions under section 8, the court held.

“It goes without saying, that the CIC’s decision on an issue of exemption under section 8(1)(c) would of course be amenable to judicial review by a constitutional court; but the CIC would, at its end, be required to decide the issue of parliamentary privilege based upon the legal principles laid down in judgments of superior courts, as applicable to a given case. If a party… is aggrieved by the CIC’s decision, it would be entitled to approach the constitutional courts for redressal,” the court held, while also pointing out that the petitioner was correct in contending that by leaving the decision on parliamentary privilege to the Speaker, the CIC had abdicated its role or “to put it differently, has delegated its power, under the RTI Act”.

The High Court then proceeded to answer the questions framed by it as follows:

  • In answer to Queries Nos. (i), (ii) and (iii) above, the disclosure of information sought was not covered by the exemption contained in section 8(1)(c) of the RTI Act and disclosure of such information would not have amounted to breach of parliamentary privilege;
  • In answer to Queries Nos. (iv) and (v) above, the CIC committed an error in disposing of the matter by leaving it to the Speaker, Lok Sabha to decide whether disclosure of such information would amount to breach of privilege of Parliament. The CIC ought to have itself decided the issue of breach of privilege in exercise of the powers conferred upon it under the RTI Act, applying well-settled legal principles relating to parliamentary privilege, such decision of course being amenable to review by constitutional courts. The Speaker, Lok Sabha/Lok Sabha Secretariat also erred in deciding that the information sought was covered by parliamentary privilege, when in fact such information had nothing to do with the parliamentary function of the House.

Justice Bhambhani lastly set aside the decisions of the CIC and the Speaker Lok Sabha and ordered that information sought by the petitioner, Subhash Chandra Agarwal be provided to him within four weeks of the date of the judgment.

If however, the information sought had already been weeded out in compliance with the rules for the destruction of records of Parliament, an affidavit of the appropriate officer to that effect would need to be filed in the high court within four weeks, with a copy to the petitioner, who may then decide what his next steps should be.

 

Read the Judgment here

[pdfviewer]https://cdn.theleaflet.in/wp-content/uploads/2019/07/08151611/Delhi_HC_Judgment_Speaker.pdf[/pdfviewer]