The Supreme Court recently passed a landmark judgment in Common Cause vs High Court of Allahabad & ANR where it ruled on the validity of the rules framed by the Allahabad high court under Section 28 of the Right to Information Act, 2005 (RTI). In a public interest litigation filed by Common Cause, the Allahabad HC’s RTI rules were challenged as being ultra vires the parent Act.
An order in November 2012 in this matter noted that the high court was going to reconsider its rules and required two months’ time to do so. However, the matter came up from time to time and the rules do not appear to have been amended.
The main contention of the petitioners was against Rule 20 of the HC’s RTI rules which provided that the information requested would be given only if it is accompanied with a “positive assertion” that the motive for such information is that it is required for a proper and legal purpose and that it is not against any law or practice prevailing in that regard.
Such a requirement, apart from being exceptionally vague, is not present in Section 6 of the parent Act which, on the contrary, states that no reason is required to be given for any information sought. This is also logical given that providing reasons for why the information is sought may defeat the purpose since information is often sought to expose snags in the system of the public authority from whom it is being sought. The Supreme Court agreed with the petitioner’s finding that the scheme of the Act did not require the disclosure of any “motive”.
During the past few years, RTI rules of various high courts have been challenged. In a study conducted by Azim Premji University in 2016-17 in nine high courts on the implementation of the RTI Act, through their respective RTI rules, it was found that these high courts did not perform very well when executing requests under the Act.
According to the study, Punjab and Haryana high court did the best, whilst Allahabad high court performed the poorest. The study also found that there was often opacity since high courts rejected a number of RTI requests for reasons that may not be based on the Act, such as information being in a “sealed cover” or that it was on the website and whilst they may decide against PIOs of other public authorities they tended to decide in favour of their own courts. This contradiction is counter-intuitive, given that the expectation would be that the judiciary would agitate the cause of the RTI, especially when it came to courts.
There have been decisions in the past that have championed transparency in judicial affairs such as the three-judge bench’s decision of the Delhi HC (upholding a previous single-judge decision) that the assets of Supreme Court judges would fall within the purview of information held by a public authority that has to be disclosed in response to any request. However, this decision may be read to mean that on an RTI request, this information has to be disclosed by the Supreme Court. In any event, several (but not all) sitting and former judges have disclosed their assets on the Supreme Court’s website. In fact, the Supreme Court had itself resolved by way of a 1997 resolution that all judges should disclose their assets.
Still, questions have been raised regarding challenging the independence of the judiciary if information of this nature is sought from sitting judges. The balance here is between information that can be sought in the performance of a public function and information that is in the nature of interference with independence and the judicial decision-making process, which ought not to come under scrutiny.
The Supreme Court had decided this issue in Khanapuram Gandaiah vs Administrative Officer and Ors. where it held that there is no obligation to disclose information relating to the basis on which a judicial officer arrived at a decision since such information, apart from not being public information, would also amount to seeking information pertaining to the use of judicial discretion. The Supreme Court held that an aggrieved party could appeal against an unfavourable decision but could not seek the basis on which a decision was arrived at.
NGOs and activists feel courts have a duty to uphold disclosure of everything that is not specifically prohibited by the RTI Act. Credit: Varsha Torgalkar/Files
In another decision of a two-judge bench of the Delhi high court (which is currently pending appeal before the Supreme Court), the question was whether the office of the Attorney General of India was a “public authority” within the meaning of Section 2 (h) of the Act so as to be subject to information requests. The state argued that the AG was a constitutional position and the government and the AGI shared a lawyer-client relationship. The office of the AG could thus not be treated as a public authority. The court accepted this argument holding that the AG essentially performs the function of giving legal advice to the government and does not perform any function or have any authority that would impact the rights and liabilities of the public.
While this decision is in appeal, it may be argued that the AG’s advice and actions could arguably impact the rights and liabilities of citizens and, therefore, in the performance of this public office, it ought to be subject to the Act. Whilst of course, the advice itself given would be privileged, it should be permissible to seek other information. One of the arguments of the respondent (that the court did not agree with) was that the AG could motion the Supreme Court to initiate criminal contempt proceedings. This power certainly impacts individuals and is beyond the pale of the traditional fiduciary relationship between lawyer and client but, in fact, empowers the AG’s office with a statutory power that an ordinary advising lawyer to the government does not have.
Another context in which information requests have to be reviewed is the burden cast on a public authority to provide information in a manner or form in which it is sought but may not be so available with the public authority. The law is settled by the Supreme Court that there is no obligation on a public authority to collate or formulate information in the form sought if that is not available with such public authority.
But take for example a case that was heard a few years ago by the Delhi high court where the petitioner had sought from the Supreme Court (among other things) information regarding the total number of cases at different periods where arguments had been heard but judgment reserved. Case information is posted on websites of the Supreme Court and high courts but this information is for individual cases and it would be an exceedingly difficult task to browse through thousands of cases to identify those that were reserved for orders.
A division bench of the Delhi high court in this case, therefore, reversed the order of a single judge and ordered that there was no need to compile this information and place it in the public domain. This maintenance of balance between the performance of a public function and providing available information whilst not casting a disproportionate burden on that public officer to collate and organise enormous data is quite fair. But this reason of information not being available in the form sought often becomes a tool to deny disclosure.
While the judiciary has balanced interests in the past, on the whole, there still remains a long road ahead. It is in this context that the Supreme Court’s decision last week on the Allahabad high court rules is so welcome. In the case, the petitioner had also challenged the requirement of seeking permission of the Chief Justice or the judge concerned as a pre-requisite for disclosure of information. The Supreme Court found this requirement unnecessary unless the information disclosed was exempted under the Act.
Other than a challenge to the fees which the court held should be reasonable, one of the petitioners had also challenged the rules which disallowed providing information about pending matters. The court made it clear that these rules for non-disclosure must be read consistently with Section 8(1)(j) of the Act which exempts personal information from disclosure unless the CPIO/SPIO/Appellate Authority is of the view that disclosure is required in public interest.
This would imply that information regarding cases pending adjudication other than what would qualify as “personal information” would have to be disclosed. In any event, it may be argued that information in regard to any filed cases is already a part of the public record of the court and would be available disclosure to the public.
The RTI Act is a legislation that enables citizens to seek accountability from public authorities. This includes courts. After each of the restrictions, such as the privilege of parliament, prejudice to the sovereignty of the nation, fiduciary relationship, personal information etc. under Section 8 of the Act are applied, what remains is the information that can be sought. Such information can only be sought from public authorities.
Within this specified sphere, a citizen’s right to information must be employed in the fullest manner possible. This sphere cannot be eclipsed with additional, unnecessary hurdles such as the permission of the judge or disclosing “motive” etc. which is not contemplated in the Act and which further eclipses the (already circumscribed) sphere of information that may be sought. The reason for this is simple. If the legislature had contemplated additional restrictions, those restrictions would have made it to the Act itself. This is coupled with the fact that in any event, the fight to receive information through the RTI process is fraught with challenges and a litigant has to go through several rounds of appeal before a final decision is made on what information can or cannot be provided. In this context then, courts have a duty to uphold disclosure of everything that is not specifically prohibited by the Act.
For the reasons above, this decision will have a far-reaching impact not only on RTI inquiries before the Allahabad high court but also other high courts where rules and responses may have to be brought in line with the Supreme Court’s mandate and the Act. Having often rebuked the government and its agencies in a number of cases for non-disclosure, it would serve as a good precedent for RTI requests to work transparently and in the spirit of the legislation even in the judiciary.
Shalaka Patil is a lawyer in Mumbai.
