Is a reply to a RTI application admissible in a court of law as evidence?
The RTI Act, 2005 empowers a citizen the right to inspect documents, as well as the right to obtain certified copies of document or records and certified samples of material maintained by a public authority. Any citizen can request for the certified copies of documents, responses, or records under the Act. In many cases pending before the Courts, the parties have produced documents duly attested by the Public Information Officer (PIO) to support their arguments. The documents obtained under the RTI Act have been produced before the consumer court or any other court with the certificate and seal of the public authority.
A question has often been raised whether this certified copy of the information documents so obtained under the RTI Act can be used in court as Evidence. If yes, whether it is primary or supporting evidence or as secondary evidence.
There is no express provision under the RTI Act about the admissibility and proof of such documents in a trial. The High Courts across the country have interpreted the Indian Evidence Act, 1872 and there have been conflicting orders in this regard. Most proponents of the RTI Act have argued that copies of public documents obtained under the RTI Act should be treated as certified copies of public documents and therefore, are liable to be admitted as evidence without any corroborating oral evidence.
Let us first look at what is Documentary evidence under the Indian Evidence Act, 1872 as dealt by the Chapter-V of the Act.
Types of Evidence
Under the Indian Evidence Act, the evidence is of two kinds - Oral and Documentary. The Documentary evidence can either be Primary or Secondary (Section 61)
· A document is Primary Evidence when the original document itself is produced before the court for inspection (Section 62).
· In relation to documents, the Secondary Evidence includes certified copies of the original, photocopies, copies made by comparing with the original, counterparts of the document and oral accounts relating to the document (Section 63).
Admissibility of Secondary Evidence
In respect to a document, the secondary evidence is admissible in limited circumstances specified in the Indian Evidence Act (Section 64 and 65) like:
· Where the original document cannot be produced because it has been lost or destroyed or in the possession of an adverse party.
· When the copies are those of public documents or are certified copies, which a law specifically permits to be given in evidence.
To prove the truthfulness of a document, it is essential to prove the authorship of the document and also the authenticity of its contents. Exceptions to this rule include:
· Certified copies of public documents can be produced as proof of the contents of the public documents of which they are copies. (As per Section 74, public documents are those forming the act or records of acts of the sovereign authorities, official bodies, tribunals and public officers of the legislative, judicial or executive of India or a foreign country etc.).
· The party shows to the court that the original documents cannot be produced because they have been lost or destroyed or are in the possession of an adverse party.
The question arises whether for proving the authenticity of the documents received as a reply to the RTI application, should the PIO or the deemed PIO need to be examined by the Court. It has been argued that the copies of public documents received under the RTI Act fall under the exception mentioned in the Indian Evidence Act as they are certified copies of public documents and should be relied upon without any further corroboration. Section 79 speaks of the presumption as to the genuineness of certified copies and read with section 77 prevents the need to examine the government official who authored the document.
Supreme Court case (Ashish Kumar Saxena v. State of UP)
A three member bench of the Supreme Court comprising Justices AM Khanwilkar, Abhay S Oka and CT Ravikumar was hearing a batch of petitions seeking GST exemption for Haj and Umrah tour operators.
On April 7, 2022, the Bench commenced hearing on a string of petitions filed by various private tour operators seeking exemption from the Goods and Services Tax for the Haj and Umrah services offered by them to pilgrims travelling to Saudi Arabia.
"In all writ petitions, RTI is relied on. This is always misleading. Depending on what question is posed, based on that the answer is given. That has been our broad experience till now. RTI is not an admission of the government. The concerned authority which is required to do business of taxation should depose on affidavit that this is what we state and only then can we accept it as admission", Justice Khanwilkar orally observed.
This oral observation has raised questions about whether the RTI replies can be used as evidence in the court of law.
Ashish Kumar Saxena vs State of UP
SLP(C) No. 11330/2020
SLP(C) No. 008131 / 2020