Inconsistencies in Madras High Court review of its order seeking to know why a person was seeking information under RTI Act

rti3By Venkatesh Nayak*

On September 17, the Madras High Court held that a person seeking information under the right to information (RTI) Act cannot exercise the power without revealing why he or she wants the information. However, the High Court did a suo motu review of this judgement on September 23, and deleted two paras (20-21) of its judgement. While passing its order on the suo motu review motion, the Court held as follows:

“In the said order dated September 17, 2014, we have made certain general observations in paragraphs 20 and 21, stating that the RTI application should contain bare minimum details or reasons for which the information is sought for. However, the said general observations were made without noticing Section 6(2) of the RTI Act, 2005…

“Therefore it is evident that a person seeking information is not required to give any reason for requesting such information. Hence, the general observations made in paragraphs 20 and 21 of the said order, dated September 17 is an error apparent on the face of the record, contrary to statutory provision. The said error has been noticed by us after pronouncing the order dated September 17 and in order to rectify the said error in paragraphs 20 and 21, yesterday (September 22), we directed the Registry to post this matter today under the caption ‘Suo Motu Review’.

“…As we are convinced that the general observations made in paragraphs 20 and 21 of the said order, dated September 17 in WP No 26781 of 2013 are against the above said provision of law, namely, Section 6(2) of the RTI Act, we are of the view that those two paragraphs, viz, paragraphs 20 and 21 are deleted in the order dated 17.9.2014 in W.P. No. 26781 of 2013. This Suo Motu Review is disposed of accordingly. No costs.”

How dispassionate should a Court be while dispensing justice?

In paragraph 25 of its original order dated September 17, the Madras High court cites a Supreme Court ruling in the matter of High Court of Judicature for Rajasthan vs Ramesh Chand Paliwal [1998 (3) SCC 72] to hold that the Chief Justice is the supreme authority and other Judges of the Court have no role to play on the administrative side so far as officers and servants of the high Court are concerned. The Madras High Court used this ratio to reject access to information about Rules relating to the recruitment of the Registrar General of the Court which the RTI applicant had sought. The Court admitted that the Public Information Officer’s (PIO) reply that no such rules existed was sufficient basis for refusing access to information because no such information was held by the Registry.

However, it must be pointed out that it ought to have also noticed what the Apex Court said in para 40 of the same judgment:

“…Under the constitutional scheme, Chief Justice is the supreme authority and the other Judges, so far as officers and servants of the High Court are concerned, have no role to play on the administrative side. Some Judges, undoubtedly, will become Chief Justice in their own turn one day, but it is imperative under constitutional discipline that they work in tranquility. Judges have been described as ‘hermits’. They have to live and behave like ‘hermits’ who have no desire or aspiration, having shed it through penance. Their mission is to supply light not heat.  This is necessary so that their latent desire to run the High Court administration may not sprout before time at least in some cases”.

This noble practice of deciding judicial matters with restraint and in a hermit-like tranquil manner, if adopted could have drawn the attention of the Court to Section 6(2) of the RTI Act and the inherently embarrassing observations made in the now deleted paragraphs could have been avoided. People in India still look upon the judiciary as the custodian of their rights and dispenser of justice even as their faith in the ability of other arms of the State to do the same is fast eroding. As the right to information was discovered by these very courts almost four decades ago, citizens look upon them to protect it and promote it, not curtail it or extinguish it.

Is the finding of the Court after deletion of the offending paragraphs just and tenable?

While we heave a sigh of relief at the suo motu deletion of the offending paragraphs, we must continue to question the findings of the Madras High Court by pointing out inconsistencies of interpretation due to the non-application of crucial provisions of the RTI Act to the questions raised in the main dispute. The RTI applicant sought certified copies of the records and file notings relating to action taken on a complaint filed by the applicant against a judicial officer. The Court does take note of the fact that the PIO permitted inspection of some of the requested information excluding file notings.

However, the Court cited its earlier ruling in the matter of Registrar General, High Court of Madras vs R M. Subramanian, [2013 (5) MLJ 513] to reject access to information including provision of certified copies on grounds of Section 8(1)(e) and (j). The Court simply did not examine the applicability of Section 8(2) namely, the requirement of supplying even exempt information if doing so would serve the public interest better. The Court had not examined the applicability of Section 8(2) in the earlier case either. In both cases the Court failed to do a balancing test between the harm caused to the protected interests and the benefit to the public interest through disclosure.

The Court also did not pay attention to the objective of the RTI Act spelt out in its Preamble, namely, establishing accountability of the State and its agencies to the citizens of India. While it is not our case that any Court should be held accountable for its judicial actions and orders outside of the established appellate/review procedures, the same principle may not automatically apply to the administrative actions of that Court. People have the right to demand accountability for the administrative actions of any public authority- even the highest constitutional functionaries are not excluded from this requirement in our democracy. This is inherent in the principle of the rule of law which underpins our constitutional scheme of governance.

Being the original complainant against the judicial officer, the RTI applicant has the right to know the reasons for any administrative or quasi-judicial decisions taken on her complaint because she is an affected party- she brought the complaint to the notice of the judicial authorities in the first place. However, nothing in its original or revised order indicates that it examined the applicability of Section 4(1)(d) which enjoins this statutory duty on the Registry and in all probability on the Chief Justice, as well acting in his/her capacity as the person in-charge of the administration of the Court. It does not exempt the administrative side of the judiciary from the applicability of this principle. in my humble opinion demanding accountability for administrative actions and decisions is not likely to endanger the ‘independence of the judiciary’ which is a basic feature of the Indian Constitution.

Further, the applicant also sought copies of her own complaints and RTI applications submitted to the PIO. The Court ruled that the request was frivolous and the information sought does not fall within the meaning of the term ‘information’ as defined in Section 2(f) of the RTI Act. Here, the Court has not adequately appreciated the fact that even letters, petitions and complaints sent by citizens to a public authority such as the Registry of any Court become ‘information held in material form’ by that public authority for the purpose of the RTI Act and the citizen’s right extends to the same under Section 2(j) of the Act unless it has been destroyed by in accordance with the applicable record retention schedule. So it is difficult to accept this statement of the Court which is not supported by any elaborate reasoning. Perhaps the parties to this case ought to have drawn closer attention of the Court to the formulation and essence of Sections 2(f) and 2(j) of the Act. The Court may have ruled differently.

This is the second instance where a constitutional court has issued an order without delving deep into the implications of its ruling, The first was the case of Namit Sharma where the Supreme Court gave some directions which would have seriously jeopardized the functioning of the Information Commissions. Thankfully, that judgment was recalled under an open review proceeding. Now this case is from the Madras High Court – an embarrassment which could have been clearly avoided to protect and preserve the dignity of the Court.

Several politicians, law experts and retired judges have often talked about ‘judicial restraint’ in the context of the higher judiciary taking on some of the role of the executive. I do not know enough to comment on those matters. However, as an avid follower of the jurisprudential developments around the RTI Act, I vote for ‘judicial restraint’ in information access disputes to avoid embarrassments of this kind. So merely deleting two paragraphs does not improve the value of the current judgment much. What has been deleted was in any case a self-confessed, uninformed observation and would have been struck down by the Apex Court on appeal.

Programme coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

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