Can SIC issue a general order to the public authorities?
Under the RTI Act none of the Information Commissions has the power to take suo motu cognizance of any matter relating to the implementation of or non-compliance with the provisions of the Right to Information Act, 2005. However in our neighbourhood, the RTI laws and Nepal and Bangladesh vest some powers with the Information Commissions to proactively take up matters relating to compliance with the provisions of those laws. The current communication/advisory purportedly signed by the State Chief Information Commissioner and the subsequent clarification issued seem to arise in the absence of any pending case before the Information Commission. Under Section 19 of the RTI Act, an order may be made only in the context of an appeal under the Commission's consideration at the time of making such an order. Similarly under Section 18 of the RTI Act, a direction, other than for disclosure of information in a particular case, may be issued pursuant to a live complaint proceeding. Thanks to the ratio of the Hon'ble Supreme Court of India in the matter of Chief Information Commissioner of Manipur vs State of Manipur (Civil Appeal Nos. 10787-10788 of 2011, judgement dated 12/12/2011) an Information Commission has no power except to impose a penalty under a complaint proceeding. Given these set of facts the twin communications/advisories issued by the SCIC are only in the nature of letters written to the addressee public authority clarifying a point. According to the Supreme Court of India an Information Commission is only an administrative tribunal very much unlike a court [Union of India vs Namit Sharma (Review Petition (C) No. 2309 of 2012, judgement dated 03/09/2013)]. Therefore Information Commissions' orders do not have the force of law unlike the orders of the Supreme Court or the High Courts under the Constitution. However they will apply only to a specific case and also may be used as a precedent in future cases while deciding upon their respective merits within an Information Commission's jurisdiction. This position does not apply to any communication issued by an Information Commission outside of a complaint or appeal proceeding.
Further, if under the laws applicable to the sanctioning of building plans, if any member of the public is granted access to building plans of third parties, in any form, subject to payment of the requisite fee, there is no reason why access must be denied when the same information is sought under the RTI Act. There is also no reason why a smaller subset of the information pertaining to building plans must be permitted under the RTI Act if all the information is fit for under the laws applicable to the authorities sanctioning the building plans. In the absence of any inconsistency with the provisions of the RTI Act there is no reason why access to a public accessible document must be denied under the RTI Act through a general communication/advisory. However the position as to the lack of inconsistency must be established with specific reference to the disclosure provisions contained in the laws, rules or regulations applicable to building plans. Under Section 25(5) a general recommendation about complying with the provisions of the RTI Act may be issued by the Information Commission to any public authority. However unlike a decision issued under Section 19, this communication or recommendation or advisory will not be binding on the public authority. Further, the recommendation must be in tune with the provisions of the RTI Act and most importantly be in consonance with the spirit of the RTI Act. The spirit of the RTI Act is clearly explained in its long title as well as in the Preamble. This law is about establishing a regime of transparency and secrecy is permitted only in a very narrow set of circumstances. So issuing communications directing that entire categories of information be kept under wraps without reference to the general laws pertaining to access to such information is not advisable. Unless there is an overbearing public interest that is clearly and easily demonstrable in terms of the harm tests laid down under Sections 8(1) and 9 of the RTI Act such communications/advisories will have little value. Further, all such communications or advisories will have to met the public interest override test given in Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. of the RTI Act in each appeal case. Therefore in my opinion it is not possible to insulate entire categories of information from disclosure under the RTI Act for all time to come.
As the Information Commissions do not have plenary executive powers like the Government at the Union or State level, they cannot issue general directives seeking compliance from all public authorities outside of Section 18, 19 or 25(5) of the RTI Act. This communication/advisory is amenable to challenge in the Mumbai High Court and later before the Supreme Court.