Indian Court Denies State Commission Right to Appeal

1 February 2013

The Indian Supreme Court on Jan. 18 rejected as “frivolous” a petition from the Karnataka information commissioner challenging a Karnataka High Court order that overturning the commissioner’s decision, according to an article in The Deccan Herald.

The order has “serious implications” for the RTI Act, wrote Shailesh Gandhi, who  served as Central Information Commissioner from Sept. 18, 2008 until July 6, 2012. “This order would be a major setback for transparency and democracy in India,” he said.

The citizen’s RTI request was for information from the Karnataka High Court about the details of the pending writ petition. The court’s Public Information Officer declined to provide the information, saying the citizen must seek the information under the Karnataka High Court’s rules.

The State Information Commission disagreed and asked the court’s officer to provide the information under the RTI Act. The Karnataka High Court named the applicant as a respondent in the case and quashed the commissioner’s order saying only the applicant could appeal. The commissioner appealed to the Supreme Court, which agreed with the Karnataka High Court that the commissioner had no basis for challenging the decision.

The Deccan Herald reported:

“What is the locus of the petitioner (Karnataka Information Commissioner) to file this petition? Who has authorised him to do so? Has the information commissioner paid the entire litigation cost from his pocket,” the bench asked advocate V N Raghupathy, appearing for the petitioner.

Describing the petition as “frivolous,” the court imposed cost before dismissing it. Perusing the case title, the court became livid and asked the counsel if it should summon the information commissioner. “It is mischief,” the court observed, adding that only the person who was denied information could be aggrieved.

Ghandi’s rebuttal article, in the Hindustan Times, states:

It is my belief that both the high court and the Supreme Court have failed to address a very important point of law. Section 22 of the RTI Act makes explicit the fact that if there is any inconsistency in a law with regard to the furnishing of information, such a law shall be superseded by the RTI Act. The insertion of a non-obstante clause in Section 22 of the RTI Act was a conscious choice made by Parliament to safeguard the fundamental right to information from convoluted interpretations of other laws and rules that are adopted by public authorities to deny information. Section 22 of the RTI Act simplifies the process of implementing the right to information, both for citizens as well as the PIO; citizens may seek to enforce their fundamental right to information by simply invoking the provisions of the RTI Act. Without addressing the provisions of Section 22, the Supreme Court has, by this order, sanctified and legitimised the denial of information by public authorities, who claim that there are rules to disclosure. This could have the effect of nullifying the impact and effect of the RTI Act in a serious way.

I believe information commissions have a justifiable duty to pursue and champion the provisions of the RTI Act. Very few commissioners do this, and the Supreme Court’s strictures on a legitimate exercise by a statutory authority is unfortunate. This would discourage commissions from pursuing their duties.

Logically, anyone who is a respondent or a petitioner has locus in a case.  I must point out that there is confusion in the courts about who should be named respondents when an RTI decision of the information commission is challenged in a writ. The Karnataka and Bombay high courts ask the commission to assume the role of a respondent in many cases, while the Delhi High Court has refused to accept the information commission as a respondent for the last two years. The only unexplained exception was in WP 3318/2012 when the court named me a respondent for discharging legitimate duties as an information commissioner. In such circumstances, the Karnataka commission could not have had clarity about whether or not it should file a petition. If a citizen can file a PIL, is it so objectionable for an information commission to challenge a major dilution to the RTI Act? Though we recognise the Supreme Court’s jurisdiction, it does seem to have publicly reprimanded a statutory authority without compelling reason. This could be a major setback for transparency and democracy in India.

 A longer version of his arguments is published in Money Life.

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