Insightful Delhi High Court order contributes to transparency established by RTI Act

lawBy Venkatesh Nayak*

The Delhi High Court, in a recent judgement  has upheld an order of the Central Information Commission (CIC) directing the Legislative Department, Government of India to upload on the official website all laws enacted by Parliament as amended from time to time. It has also upheld the CIC’s direction to the Government to examine that the functionality of the official email addresses of officers of the Department.

Background to the RTI intervention

The Respondent in the case decided by the Delhi High Court was a law student at the National Law School of India, University (NLSIU), Bengaluru. As he could not find the complete version of a law passed by Parliament with all the latest amendments online, he submitted an RTI application to the Central Public Information Officer (CPIO) of the Legislative Department. The email bounced back. He does not appear to have received adequate redress from the First Appellate Authority. So he approached the CIC.

Disposing of the case, the CIC pointed out:

“It is the minimum responsibility of state to provide updated information about amendments, which will go in long way in helping people. The access to law is not just a requirement of Law student and law researchers, but a necessity of all citizens. For instance, the Parliament by the Criminal Law (Amendment) Act, 2013, has amended section 100 of Indian Penal Code, which provide a right of private defence of body even to the extent of causing death in case of acid attack. Many men or women are not even aware of self defence right that they can even kill assailant if the later is attacking to kill, rape or throw acid, or cause grievous hurt etc.”

The CIC directed the Legislative Department as follows:

“11. The Commission directs the respondent authority, Legislative Department to inform the complainant and the Commission as to what action has been taken including details of the programme of updation, the possible date of its completion, expenditure involved, personnel employed etc. The Commission also recommends the department to recognise urgency and significance of the issue, expedite the process, allocate more fund to employ more personnel and complete the process of updation as soon as possible.

“12. The Commission also directs the respondent authority to examine the functionality of the email ID in view of the Complainant’s claim that most of the email ID have failed. The Legislative Department also should have perfect RTI filing system and answer mechanism.”

Despite the fact that the RTI intervention begun in July 2012 was resolved by the CIC only in November 2015 (more than 3 years later), the CIC directed the Legislative Dept. to pay Rs. 10,000 as compensation to the NLSIU as an exemplary measure. The Legislative Dept. challenged the CIC’s order before the Delhi High Court.

What did the Delhi High Court say?

The Delhi High Court refused to interfere with the directions of the CIC. Upholding both CIC directives relating to RTI, the Court said:

“3. In the present writ petition, it has been averred that the respondent never filed an RTI application in the prescribed form and the requisite fee. It is also stated that the respondent did not file the first appeal and hence the second appeal could not have been entertained by the CIC.

“4. This Court is not an appellate Court of the CIC. Technical and procedural arguments cannot be allowed to come in the way of substantial justice. The directions given by the CIC in the impugned order are not only fair and reasonable but also promote the concept of rule of law. It is unfortunate that the petitioner did not take the initiative on its own to upload the latest amended bare Acts.

“5. Public can be expected to follow the law only if law is easily accessible ‘at the click of a button’. In fact, as rightly pointed out by the CIC, the RTI Act itself mandates the Government to place the texts of enactments in public domain.”

The High Court upheld the CIC’s order for token compensation saying:

“6. This Court also take judicial notice of the fact that in challenging the imposition of costs of Rs.10,000, the Government of India would have spent more money in filing the present writ petition. Consequently, this Court is of the view that the costs of Rs.10,000/- which was directed to be paid by the CIC, should be recovered from the salary of the Government officials who authorized the filing of the present writ petition.”

Implications of the Court’s judgement

This landmark judgement, thanks to the intervention of the law student who ultimately had little use for the information sought, by the time the case was decided, is significant for multiple reasons:

1. It makes it mandatory for the Government of India to publish the amended version of laws as and when amendments are incorporated. In India this is not common practice at either the Central or the State level. The CIC’s observation that updated versions of the laws are not always available on government websites is a problem that many researchers and advocators have experienced in the past. However, private publishing houses do a better job of this as they quickly publish amended versions of laws. The bureaucratic juggernaut in India reacts slowly or not at all. It is very welcome that the government has now been reminded of its duty to publish laws in their updated form and not piece meal – main enactment ion one place and later amendments as separate documents. I could find only the text of the Constitution updated on http://indiacode.nic.in/.

It is also heartening to note that the CIC has changed its thinking in terms of access to the text of laws under the RTI Act. When I demanded access to the official text of the Delhi Development Act, 1957 under the RTI Act and DDA replied that it was available in law book stores, the CIC upheld that contention. Although the text of the DD Act is available in MSWord format on the website it is not easy to locate it. Google search makes it more easily accessible than the DDA websites’ navigation scheme. However the gazette notifications of the amendments to the Act and the Rules and Regulations made under it are not as easy to locate. DDA often treats its website as a dumping ground for such categories of information instead of creating a sensibly indexed catalogue for the same in accordance with Section 4(1)(a) of the RTI Act.

2. Another major problem that plagues access to laws is the non-availability of rules and regulations made under a legislation by the competent authority. While texts of laws enacted by Parliament are available on official websites, rules and regulations made under them are not easily available. Perhaps proactive disclosure of rules and regulations will require another RTI intervention of this kind. The situation with laws enacted by State legislatures is much worse in many States. Let alone the text of rules and regulations, often it is difficult to find the texts of the main enactments also.

3. The Delhi High Court’s order is a step forward regarding grant of compensation under the RTI Act. Until this judgement came out the position was that the RTI applicant had to demonstrate the nature of loss or detriment suffered due to non-provision of access to information under the law\. However now the Delhi High Court has held that compensation may be paid where the costs involved in challenging such orders would be much more than saying the compensation amount.

The short but insightful order of the Delhi High Court contributes to the expansion of the regime of transparency established by the RTI Act.

*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative,  New Delhi

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