<p>The Right to Information Act (‘the Act’) was introduced in 2005, and the efforts that were invested were intended to provide transparency in governance, create accountability and eradicate the rampant corruption in the echelons of Government and public bodies, from which obtaining information without passing bucks was virtually impossible and extortion was the order of the day. The difference that the Act has made to the citizenry at large is undeniable, and it has inspired similar legislation in other jurisdictions.
Yet there is a distinct disenchantment. No less a person than the Chief Justice of India has deprecated the misuse that is being made of this law. Sections 3 and 4 of the Act entitle all citizens of India to this right, which is not available to corporations or foreigners and the process under Section 6 (2) specifically provides that an applicant making the request for information is not required to provide any reasons for requesting for the information. Section 8 provides for the information which is to be exempted, which includes various items requiring confidentiality or protected by privilege, such as cabinet papers, investigation in process and personal information which is not connected with any public nexus.
The definition of “Information under Section 2 (e)” has a wide scope that includes memos, advises, records et al in its ambit. The Government position has been that notings are not part of records. There have been ongoing debates on whether file notings should be exempted, but this has not travelled very far.
What has been challenged is the locus of the applicant and the purpose of his query.
Sometime in 2009 a proposed amendment was mooted requiring applicants to provide reasons for seeking any information, and be provided the same, subject to the public information officer’s discretion – a proposal which is inconsistent with the purpose of the Act and runs contrary of the concept of transparency. This too fizzled out.
But the recent face offs between other regulators and the chief information commissioner(s) (CIC), on the issue whether the provisions of RTI could be invoked by a citizen even if there is an existing specific mechanism prescribed by the authority is a matter of concern. In the case involving the Supreme Court Rules, the CIC passed an order that it was the citizen’s prerogative to select a mechanism of his preference, thereby holding that the specific mechanisms ie the Supreme Court Rules were overridden by the RTI Act. In appeal, the Delhi High Court has stayed the CIC order on the basis “that an important question arises” as to whether information on court proceedings could be sought under the Act regardless of staying the operation of the CEC order, even though Section 22 of the Act has an overriding effect notwithstanding anything contained in any other law or by effect of its virtue thereof. This matter is still to be decided.
Meanwhile, the Delhi High Court has passed a judgment in the last week based on a writ petition preferred by the registrar of companies for NCR/Delhi (ROC). In the instant matter the querist required the public information officer(PIO) of the ROC, who had taken a stand that this information could be accessed under Section 610 of the Companies Act and therefore need not be provided under the Act. The CIC show caused the PIO as to why he should not be subjected to the consequences for non-performance under Section 20 clause (1) of the Act. Under the above circumstances, ROC has filed the writ petition which was entertained by the high court in spite of Section 27 of the Act providing for a bar of jurisdiction of courts other than by way of appeal.
The CIC web reports show that certain documents which form part of the CIC’s record including complainant’s statement reveal that MCA’s website was inspected but no information was available. The respondent claims to have physically inspected the files available and paid a total sum of Rs1,200. The CIC complaint is claimed to have been filed thereafter. But the judgment does not deal with this. The court has dwelt in detail on the scope of Section 610 of the Companies Act, its accessibility to ‘any person’ for any information seamlessly. The court has not paid sufficient heed to the fact that PIO had responded to only two questions under the RTI, before insisting the applicant to apply under Section 610 and pay the requisite fees.
The legal issue squarely rests on the issue of interpretation of the non obstante clause where, with due respect , the Hon’ble Court has erred in applying the law. As stated, the provisions of the Act have to apply notwithstanding anything inconsistent therewith contained in the extant law.
The court has interpreted this to mean that since there are no inconsistencies in the provisions of the RTI and Section 610, the latter should prevail. The court has failed to appreciate that inspite of the requirements of Section 610, if the office bearers do not provide what is required, citizens recourse is under the Act.
Even otherwise, the Act as it is worded permits the citizen to approach the RTI without any condition precedent. Further, the courts finding that the Companies Act will prevail being the older law is totally contrary to the principles of interpretation of the statutes as such, and the position of the Supreme Court that the later law, even though general would always prevail over the special has not been followed.
Having said that it’s not denied that laws are misused and enquiries under the Act often form the basis for vexatious and motivated litigation. But on balance what has to be viewed are the benefits that enure – this is fundamental in any democracy, and the present case in hand does not warrant an exception
Kumkum Sen is a partner at Bharucha & Partners Delhi Office and can be reached at email@example.com