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Are the Gujarat High Court Rules in consonance with the provisions of the RTI Act?

7 Apr, 2020

A critique of the Supreme Court Judgment

The Supreme Court delivered a disturbing judgment on the scope of the RTI Act, in Civil Appeal NO(S).1966-1967 of 2020 (Arising out of SLP(C) No.5840 of 2015) Chief Information Commissioner v. High Court of Gujarat and Another dated March 04, 2020. A critical look at the Supreme Court judgment - What is the issue, Where did the Court go wrong, Why is the judgment significant, How can it be corrected etc.

Introduction

1.1 As per the Gujarat High Court Rules, on filing of application with prescribed court fees stamp, litigants/ parties to the proceedings are entitled to receive the copies of documents/ orders/ judgments etc. The third parties who are not parties in any of the proceedings, shall not be given the copies of judgments and other documents without the order of the Assistant Registrar. As per Rule 151 of the Gujarat High Court Rules, 1993 the applications requesting for copies of documents/ judgments made by third parties, shall be accompanied by an affidavit stating the grounds for which they are required. On making such application, the applicant will be supplied the certified copies of the documents as per Rules 149 to 154 of the Gujarat High Court Rules, 1993.

1.2 Section 6(2) of the RTI Act specifically provides that an applicant making a request for information shall not be required to give reasons for requesting the information sought while the Gujarat High Court Rules, 1993, states that when any person seeks certified copies of the documents of any third party proceeding, their application must be supported with an affidavit stating the grounds on which the documents are required. Thus, seeking reasons for information amounts to be against the basic tenets of the RTI Act.

1.3 It is a settled position of law that in case of an inconsistency between the provisions of the RTI Act and any other law made by the Parliament or State Legislature or any other authority, the former must prevail. Section 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of the RTI Act specifically provides that the provisions of the RTI Act will have an overriding effect over any other laws for the time being in force.

1.4 On an appeal, the Information Commission directed the PIO, Gujarat High Court to provide certain information under the High Court Rules. The Division bench of the High Court allowed the Letters Patent Appeal against the order of the Information Commission holding that when a particular field is governed by the rules which are not declared ultra-vires, then there is no question of applying the fresh rules and make the situation confusing. The High Court held that in light of the High Court Rules, certified copies may be given on payment of charges as per the Rules and also the Information seeker has to file an affidavit disclosing the purpose for which the certified copies are required and there is no question of making an application under the RTI Act.

View of the Supreme Court

2. The Rules of the High Court only stipulate that the third parties will have to file an application/affidavit stating the reasons for which the information/certified copies are required. The Rules framed by the Gujarat High Court are in consonance with the provisions of the RTI Act. There is no inconsistency between the provisions of the RTI Act with the Rules framed by the High Court in exercise of the powers under Article 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 5 of the Constitution of India.

Critique of the Supreme Court Judgment

3. Impeding the flow of information

3.1 The Supreme Court may be right in holding that the “High Court Rules do not obstruct a third party from obtaining copies of documents in any court proceedings or any document on the judicial side. It is not as if the information is denied or refused to the applicant. All that is required to be done is to apply for the certified copies with application/affidavit stating the reasons for seeking the information.” But these rules certainly impede the process of free access to information.

3.2 One just needs to talk to a common man about what an affidavit is and how to make one in the legal jargon to realise how difficult it is. It is time consuming, costly and even dissuading. For Court fee stamp, one has to go looking for it at specific places as they are not available at post offices or banks.

3.3 Hence, the following Supreme Court observation is way off the mark “The procedure to obtain certified copies under the High Court Rules is not cumbersome and the procedure is very simple – filing of an application/affidavit along with the requisite court fee stating the reasons for seeking the information.”

4. Overriding effect in case of inconsistency

4.1 The judgment held that the High Court Rules do not forbid the dissemination of information, but rather, they only provide for a different procedure to obtain information. Hence, they cannot be held to be inconsistent with the RTI Act. The Supreme Court has failed to note that the procedure prescribed by the High Court rules is archaic which restrains access to information. The inconsistency between the High Court Rules and the RTI Act has missed the eyes of the Court which impedes the access to information.

4.2 The inference that “… although Section 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of the RTI Act has an overriding effect over any other laws, in case there are inconsistencies, Section 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of the RTI Act does not contemplate to override those legislations which also aim to ensure access to information.” is erroneous. The Court has failed to appreciate what it is calling an alternative manner to seek information is actually a hindrance to free flow of information. This is apparent by the questions framed by the Court for consideration in the case. When the questions themselves are improper, correct answers can never be found. The following questions were taken up for consideration by the Court:

(i) Whether Rule 151 of the Gujarat High Court Rules, 1993 stipulating that for providing copy of documents to the third parties, they are required to file an affidavit stating the reasons for seeking certified copies, suffers from any inconsistency with the provisions of RTI Act?

(ii) When there are two machineries to provide information/certified copies – one under the High Court Rules and another under the RTI Act, in the absence of any inconsistency in the High Court Rules, whether the provisions of RTI Act can be resorted to for obtaining certified copy/information?

The second question indicates a bias of the Court to the presumption that there are two machineries to provide information and there is no inconsistency between them.

4.3 It is not in dispute that as per section 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. , the RTI Act shall have overriding effect wherever any other law is inconsistent with the RTI Act. The section 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. reads, “The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.” The High Court Rules place an additional burden (above and beyond the RTI Act) on the person seeking information, the Act explicitly overrides these requirements.

5. Principles of legal reasoning

5.1 The Supreme Court has missed the fundamental principle of legal reasoning: ‘A statute must be read as a whole in its context.’ Thus, while analysing a legal provision, the provision must be read in its entirety.

5.2 Once the documents related to any case proceedings comes in the ambit of ‘information’, the RTI Act provides that reasons shall not be required to be given for why information is being sought. Article 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 5 of the Constitution does not allow the High Court Rules to demand that applications seeking copies of documents must be supported with reasons.

5.3 The power to make rules by competent authority has been granted by section 28 of the RTI Act. This implies that the RTI Act must override the High Court Rules, even in the terms of the fact that the provision that empowers the High Court to make the Rules in the first place comes from the Act itself.

5.4 The High Court Rules have been framed in exercise of the powers under Article 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 5 of the Constitution of India which would be subject to any other law and as per the non-obstante clause in Section 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of the RTI Act, the provisions of the RTI Act would override the High Court Rules. It is noteworthy that the Article 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 5 of the Constitution which deals with the Jurisdiction of High Courts starts with “Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution …”. It is clear that the jurisdiction of the High Court to make any Rules is subject to the provisions of law. The High Court Rules are not a superior legislation over the RTI Act.

5.5 The whole judgment is based on the defective reasoning that there is no inconsistency at all. The mischaracterisation of the Rule 151 as an enabling provision, made for the dissemination of information, only with a different procedure is appears to be blatantly incorrect.

5.6 The third party procedure as per section 11 of the RTI Act which provides for the mechanism for protecting personal information was brought to the notice of the Supreme Court. However, the Supreme Court did not find “any merit in the above submission” and rather denigrated it stating that, “such cumbersome procedure has to be adopted for furnishing the information/certified copies of the documents.” The solution provided by the Court to the cumbersome procedure was filing an affidavit. The Court observed “When there is an effective machinery for having access to the information or obtaining certified copies which, in our view, is a very simple procedure”.

5.7 The Supreme Court has erred in holding that “A special enactment or rule cannot be held to be overridden by a later general enactment simply because the latter opens up with a non-obstante clause, unless there is clear inconsistency between the two legislations.” The observation that “In the RTI Act, there is no specific reference to the rules framed by the various High Courts or any other special law excepting the Freedom of Information Act, 2002” is shocking. Did the Court expect that all the hundreds of laws which would be overridden be named?

6. Choice between options

Even if one agrees with the Supreme Court argument that the High Court Rules provide an alternative mechanism to seek information, then the question arises who should exercise that option? The choice must be left with the user to make use of the option which he /she finds best. Any authority or Court cannot enforce a user to make use of a particular option. This has been the continuous stand of the Court in numerous cases. (Please refer to the article - Under RTI, a citizen should be able to choose the method for obtaining information Read more at: http://www.rtifoundationofindia.com/under-rti-citizen-should-be-able-choose-method-obt#.XowzBYgzbIU )

7. Others

7.1 Another error committed by the Court was artificially dividing the information held by the Court into information on the Judicial side and the information on the administrative side. Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act categorically defines “information” and all information which is not exempt, has to be provided. From the perspective of the RTI Act, any attempt to divide “information” into further sub-groups is fallacious and creates confusion.

7.2 While there can be an apprehension that allowing an applicant to seek information from the High Court under RTI Act can prejudicially affect the privacy/rights of other parties or the administration of justice, suitable remedy has already been provided under the RTI Act by virtue of exemption sections 8 and 9. There is no need to further extend the clauses to deny information or to introduce new procedure which makes it difficult for an information seeker to avail the information.

7.3 The Fee for obtaining information under the RTI Act has been fixed. Expecting an applicant to spend any amount beyond that required by law for seeking information would not be legal and proper, which the Gujarat High Court Rules envisage.

8. Conclusion

8.1 The Supreme Court seems to have make a gross error of judgment in arriving at the decision that the Gujarat High Court Rules in consonance with the provisions of the RTI Act, 2005. The scope and ambit of the Gujarat High Court Rules (and other similar High Court and even the Supreme Court Rules) are circumscribed by the provisions of the RTI Act, 2005.

8.2 The least the Court could have done was to allow an applicant to choose the method of obtaining the information.

8.3 If the Court wished to make it easier for an applicant to obtain information, it could have provided an option to an applicant to provide the reasons for obtaining information on a plain paper as a part of the RTI Application. Such an option should not be in the form of an affidavit and should not be mandatory. It could save time and energy spent on procedural issues.

9. What should be the course of action?

9.1 Accepting the judgment as such may set a dangerous precedent - encourage other authorities to adopt similar enabling provision (allegedly for the dissemination of information) setting a different procedure which may make access to information difficult. Such a trend would make the RTI Act a dead Act.

9.2 The judgment, with such poor standard of legal reasoning, sets a wrong precedent. When it comes to interpreting the constitution and law of the land the final word rests with the Supreme Court, though the Court may necessarily not always be right. The Supreme Court is supreme "but not infallible". Chief Justice of India (CJI) YK Sabharwal had made a call that “the power to account for high and superior judiciary must remain within the judiciary.” For that to be so, the Court must take cognisance of its oversight and review the judgment like the Namit Sharma case. Shouldn’t Judiciary must remain accountable in the judgments it writes?

[Emphasis provided]

Further reading

For a critical reading of the Supreme Court judgment in Common Cause Versus High Court Of Allahabad & Anr., Writ Petition (Civil) NO.194 of 2012, the Readers may also like to refer to the article: A critique of the Supreme Court judgment regarding the fee to be charged under the RTI Act Read more at: http://www.rtifoundationofindia.com/critique-supreme-court-judgment-regarding-fee-be-c#.XoyBI4gzbIU
The arbitrary manner of fixation of Fee prompted the article: Who would teach law to the High Courts of the country? Read more at: http://www.rtifoundationofindia.com/who-would-teach-law-high-courts-country-3313#.XoyDGIgzbIU
Supreme Court reviews Namit Sharma judgment … Read more at: http://www.rtifoundationofindia.com/supreme-court-reviews-namit-sharma-judgment-inform#.Xox_kogzbIU

For the full reading of the judgment being commented upon, the readers may refer to the link - http://rtifoundationofindia.com/files/infobeans-cms-next/upload/17.pdf

Are the Gujarat High Court Rules in consonance with the provisions of the RTI Act?

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