CIC has jurisdiction to entertain complaints u/s 18 & hear second appeals u/s 19 in cases pertaining to all the High Courts - CIC: the manner in which a competent authority exercises its powers to frame rules u/s 28 is not within the purview of CIC
This case was heard in pursuance of directions dated 4.6.2014 of the Hon’ble High Court of Madras in MP nos. 2 and 3 of 2013 in WP no. 19699/2013 – PIO, Madras High Court vs Central Information Commission and Anr. by which the Hon’ble High Court directed the Commission to decide the preliminary issue of jurisdiction to entertain the complaint made by respondent No.2 in the writ petition, i.e., Shri C.J. Karira, after issuing fresh notices to the petitioner as well as the respondent no. 2 .
2. Shri C.J. Karira filed a complaint under section 18 of the Right to Information Act, 2005 (the Act) on 23.1.2010 against the Hon’ble Madras High Court (the High Court) relating to the “High Court Right to Information (Regulation of Fee and Cost) Rules, 2006” (the Rules) made by the Hon’ble Chief Justice of the High Court.
3. In the complaint, it has been contended, inter alia, that
(i) the Hon’ble Chief Justice does not have any powers to formulate RTI rules for the subordinate courts as the power under section 28 of the Act is restricted only to the High Courts;
(ii) if the PIO has to obtain approval from someone else before supplying the information, he will never be held responsible for his actions and the whole structure of the Act would collapse;
(iii) the decision to restrict the subjects over which information can be made available as indicated in the Rules restricts the fundamental rights of the citizen and violates the Act both in letter and spirit; and
(iv) the designation of the PIOs and the first appellate authorities in the subordinate courts is totally ultra vires since the subordinate courts are independent public authorities under section 5(1) of the Act. It has been prayed that the Commission under section 25(5) of the Act may recommend to the Madras High Court to take steps to bring the practice of the public authority, in terms of its fees, procedure and Rules, as per the letter and spirit of the Act.
4. Shri R.K. Jain, advocate for the complainant, argued at length making reference to various provisions of the Constitution and the Act. He submitted that all the High Courts in the country are public authorities under the Act and they fall within the jurisdiction of the Commission and not the State Information Commissions. He further submitted that a number of cases are pending before the Commission and that the various High Courts including the Madras High Court have already submitted to the jurisdiction of the Commission. He relied upon the decision of the Commission dated 13.3.2009 passed in case no.CIC/AT/A/2008/01137 – D.N. Loharuka vs High Court of Judicature at Mumbai and the decision dated 29.9.2010 passed in case no. CIC/PA/A/2009/0005, 06 and 07 – Sundeep Goyal vs Calcutta High Court.
5. Shri Jain further submitted that the Chief Justice of a High Court, who has been defined as ‘competent authority’ under section 2(e) of the Act has power to make rules under section 28 only for the High Court and not the subordinate courts, which are separate and independent public authorities under the Act. He further submitted that the Chief Justice cannot make rules restricting the subjects over which information can be made available to the citizens. He further submitted that the rules cannot provide for seeking approval by the PIO, from the Chief Justice before furnishing the information to the information seeker. The complainant as well as Shri Jain is requesting that the Commission should, in the facts and circumstances of the case, recommend to the High Court under section 25(5) of the Act to make the Rules in conformity with the provisions of the Act. Shri Jain submits that there are precedents where the Commission has issued recommendations under section 25(5) to the High Courts and is relying on the Commission’s order dated 12.01.2012 passed in case no. CIC/WB/C/2010/ 900031 etc. – C.J. Karira vs High Court of Andhra Pradesh & Ors.
6. None was present on behalf of the respondent PIO on the date of hearing. However, Shri S. Balaji, advocate for the PIO has filed an application dated 22.7.2014 to permit him to file written submissions in the matter. The application is allowed and his written submissions are taken on record.
7. In the written submissions, the PIO has submitted that the Commission has no jurisdiction to adjudicate on the validity of the Rules framed by the Chief Justice of the High Court under section 28 of the Act. Section 18 does not confer any power either to the Commission or the State Information Commissions to decide or consider the validity of the Rules made by the competent authority under section 28. The duty of the Commission to make recommendations under section 25(5) cannot be read into section 18 and the power under section 25(5) does not confer any power to examine the validity of the Rules. The High Court under articles 227 and 235 of the Constitution has comprehensive control over the subordinate judiciary and as such, can make rules under the RTI Act for subordinate courts. He has requested for quashing the complaint as illegal without jurisdiction and non est in law.
8. We have gone through the contents of the complaint and the written submissions of the parties.
9. The Commission has been constituted under section 12(1) of the Act to exercise the powers assigned to it under the Act and perform its functions accordingly as specified in Chapter V of the Act containing sections 18, 19 and 20. Section 18 imposes a duty on the Commission to receive and inquire into a complaint from any person on the grounds indicated in sub-section (1). This section also confers on the Commission some powers of a civil court for certain purposes. Section 19, which deals with appeals, provides for filing a second appeal against the decision of the first appellate authority before the Commission under sub-section (3). As per sub-section (7), the decision of the Commission is binding. Sub-section (8) indicates the power of the Commission to give certain directions in its decision. Sub-section (10) casts an obligation on the Commission to decide the appeal in accordance with the prescribed procedure. Further, Section 20 empowers the Commission to impose penalty while deciding the complaint or appeal.
10. Section 27 (1) empowers the appropriate Government (Central or State) to make rules to carry out the provisions of the Act. Without prejudice to the generality of sub-section (1), sub-section (2) states some of the matters on which the Rules may be made. Similar power to make rules has been conferred under section 28 on the competent authority. The ‘competent authority’ has been defined in clause (e) of section (2) of the Act. As per this clause, the Chief Justice of the High Court is a competent authority in the case of a High Court. Therefore, the Chief Justice of the Madras High Court, being a competent authority, has power to make rules under section 28 for the purposes mentioned therein. Therefore, the rules, under reference, have been framed by the Chief Justice of the Madras High Court, accordingly. This power is at par and co-extensive with the power of the appropriate Government under section 27.
11. Section 25(1), which is contained in Chapter VI under the head ‘Miscellaneous’, obliges the Commission (Central as well as State) to prepare an annual report on the implementation of the provisions of the Act for information of the appropriate Government. Sub-section (2) casts a duty on each Ministry or Department in relation to the public authority within their jurisdiction to collect and provide the relevant information to the Commission. Sub-section (3) indicates what the report shall state in respect of each year. Sub-section (4) requires placing of the report before the Parliament/State Legislature, as the case may be. Sub-section (5) provides that the Commission may give to the public authority concerned a recommendation specifying the steps to be taken if the practice of the authority in relation to the exercise of its functions under the Act does not conform with the provisions of the Act.
12. We agree with Shri Jain that the Commission has jurisdiction (to the exclusion of the jurisdiction of a State Information Commission) on the High Courts in the country in respect of matters concerning the exercise of right to information by a citizen. In other words, the Commission is the second appellate authority in respect of all the High Courts and also it has jurisdiction to entertain complaints under section 18 in appropriate cases pertaining to the High Courts.
13. As already indicated above, the issue for consideration is about the jurisdiction of the Commission to entertain the complaint. A careful consideration of the matter would indicate that the thrust of the complaint and the arguments of the complainant is about the validity of the exercise of legislative competence by the Hon’ble Chief Justice of the High Court of Madras in making the rules which are contended to be against the letter and spirit of the Act.
14. From a combined reading of sections 18 to 20 of the Act, it would be clear that the contents of the complaint do not fall in the ambit of section 18 or 19. There is no provision in the Act which empowers the Commission to entertain and examine the issue relating to the exercise of rule making power by the appropriate Government or the competent authority under the Act.
15. The purposes of section 25(5) and sections 18 to 20 are distinct. The purpose of section 25(5) is to give a recommendation specifying the steps to be taken by the public authority for promoting conformity with the provisions of the Act if it appears to the Commission that the practice of a public authority does not correspond with the Act. The purpose of sections 18 to 20 is to handle complaints and second appeals filed before the Commission as per provisions of the Act and the rules framed thereunder.
16. The recommendation made under section 25(5) of the Act in case no. CIC/WB/C/2010/900031, etc. relied upon by Shri Jain is distinguishable as in that case the Commission was concerned with the matter relating to the compliance of provisions of section 4 of the Act and not the validity of the rules framed under the Act. Any recommendation to take specified steps under section 25(5) of the Act will be made by the Commission on the administrative side only when it appears to the Commission that the practice of a public authority in relation to the exercise of its functions under the Act does not conform with the provisions of the Act.
17. In the lightof above, the plea of Shri Jain to follow the above mentioned precedent and make a recommendation under section 25(5) cannot be accepted.
18. The Commission in its decision in case no.CIC/AT/A/2008/01137 dated 13.3.2009 mentioned above has held that the manner in which a competent authority, [under section 2(e)], exercises its powers to frame rules under section 28 is not within the purview of this Commission.
19. It is apparent from above that the Commission should not get into the question of the legal validity of the rules made and the question of competence of the rule making authority.
20. In the light of the above discussion and in the circumstances of the case, we are of the view that the Central Information Commission, while having the jurisdiction to entertain a second appeal under section 19 and a complaint under section 18 of the RTI Act, does not have the jurisdiction to entertain the complaint under reference by virtue of its contents.
21. We are of the view that the Commission does not have the jurisdiction to test the legal validity of any provision of the Act or the rules framed thereunder. We are in agreement with the view taken in case no.CIC/AT/A/2008/01137 mentioned above. Thus, this Commission does not have the jurisdiction to entertain the complaint made by Shri C.J. Karira.
22. A copy of this decision may be sent to the Hon’ble High Court of Madras for information/record.
(M.A. Khan Yusufi)
Citation: Shri C.J. Karira v. High Court of Madras in Case No.: CIC/SM/C/2011/901285