Shailesh Gandhi

| @ | March 10,2020

[dropcap]T[/dropcap]HE Supreme Court has recently delivered a judgment in Chief Information Commissioner v. High Court of Gujarat and another on 4 March 2020. It is likely to have a very negative implication on the citizen’s fundamental right to information (RTI). The court has ruled that if a citizen wants copies of judicial proceedings, s/he cannot get it by asking for it in RTI.

The Supreme Court of India and all the High Courts 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 these if they give an affidavit stating their reasons for seeking this information.  If the Court was satisfied with the reasons for seeking information, 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.

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, and some reasonable restrictions on all these can be imposed on these as laid down in Article 19 (2).

In line with this, the Right to Information Act, 2005 (RTI Act) has specific exemptions under Section 8 and only these exemptions could 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, 1923 as far as providing information in RTI is concerned. It does not mean that the Official Secrets Act, 1923 or other acts are repealed. When a request for information is filed under the RTI Act, it can be denied only if the provisions of the RTI Act provide for an exemption.

The judgment of the apex court does not clearly identify how it has concluded that the Supreme Court and the High Courts rules are not inconsistent with the RTI Act. Instead, the court has concluded that if any law or rule provides for providing 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 rules:

  1. In the RTI Act, no locus is required, whereas the Court rules differentiate those with locus
  2. 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
  3. 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
  4. 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 choose the route.

It is worth noting that the Supreme Court in Commissioner of Income Tax Gujarat v. A. Raman & Company, which was upheld in Commissioner of Income Tax v. Calcutta Discount Co. Ltd. and subsequently in Union of India and Anr. v. Azadi Bachao Andolan and Anr., 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 apex 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 apex 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 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.

 

Read the judgement here:

(Shailesh Gandhi is a former Central Information Commissioner)

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