Rule 12 of RTI (Subordinate Courts & Tribunals) Rules is not inconsistent with Article 19(1)(a) and the provisions of the RTI Act
17 Oct, 2022In a recent decision, the Kerala High Court has held that the copies of ‘A’ diary of civil and criminal postings of the cases can be obtained by filing copy application in the court under the relevant Rules and not under the RTI Act, 2005. The Court further held that the Rule 12 of the Right to Information (Subordinate Courts and Tribunals) Rules, 2006, is not inconsistent with Article 19(1)(a) of the Constitution of India and the provisions of the Right to Information Act, 2005. The Court also chided the PIO for quoting non-existent provisions of the RTI Act for denial of information.
A quick look at the decision is given below:
RTI Application
A retired Class I officer (presently a practicing lawyer), made an application under the RTI Act before the PIO, District Court, Ernakulam seeking copies of ''A' diary of civil and criminal postings of the cases for the period from 01.12.2021 to 14.04.20 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. '.
Reply by PIO
The application was rejected by the PIO stating that:
- The information sought for can be obtained on submitting copy application and besides, those information is available in the website of the Court, Court notice board and in the Kiosk of the District Court.
- Section 4(1)(a) Every public authority shall maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated; of the RTI Act enjoins every public authority to maintain records in a manner and the form, which would facilitate the right to information under the RTI Act.
- The 'A' diary being part of court proceedings, the matter was brought to the notice of the Hon'ble Judge and the application was rejected on 18.04.20 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. .
Order of the FAA
The FAA held that the information sought for by the petitioner relates to judicial proceedings and the High Court as per Rule 12 of the RTI (Subordinate Courts and Tribunals) Rules, 2006 has directed all Subordinate Courts in the State that no information relating to any Judicial Proceedings shall be disclosed under the RTI Act.
Legal Discussion
- Rule 72 (1) of the Criminal Rules of Practice, Kerala,1982 reads as follows;
'72. Diary.- Every Court shall maintain a diary in Administrative Form No.10. The entries shall be signed by the Presiding Officer on the day to which they relate.'
- Rule 382 of the Civil Rules of Practice, Kerala, 1971 reads as under;
'382. A Diary.- In all suits, appeals, and miscellaneous proceedings, a general diary shall be maintained setting out only the judicial work done in each case. Entries such as filing of suits, appeals, petitions and issue and return of processes, etc., which are only ministerial, shall be omitted. The A Diary shall be signed by the Judge himself.'
''A' diary is thus the record of the sum and substance of the judicial work of each case taken up for consideration on a day, signed by the Presiding Officer.
- Rule-12 of the RTI (Subordinate Courts and Tribunals) Rules, 2006 reads, “No application for information or document relating to any judicial proceedings shall be entertained under these rules.”
- Rule 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. 2 of the Criminal Rules of Practice, Kerala,1982 deals with application for copies and reads as follows; “ 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. 2. Applications for copies.-Every application for a copy of a proceeding or document filed in or in the custody of a Court shall be presented by the applicant or his pleader and shall set out the name of the applicant ,his position ,if any, in the proceedings, name of the pleader, if any, and a description of the proceeding or document of which a copy is required.” Rule 239 of the Civil Rules of Practice, Kerala, 1971 deals with similar provision.
- Rule 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. 6 of the Criminal Rules of Practice, Kerala,1982 deals with application for copies by strangers. Rule 240 of the Civil Rules of Practice, Kerala, 1971 deals with similar provision for copies by strangers.
- The Apex Court in the Chief Information Commissioner v. High Court of Gujarat and another [(2020) 4 SCC 702: AIR 2020 SC 4333: 2020 (2) KHC 3 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. : 2020 (2) KLT 739: ILR 2020 (1) Ker 907] has held that when the information can be obtained through the mechanism provided under the rules made by the High Court, the said mechanism should be preserved and followed and the provisions of the RTI Act shall not be resorted to. Since the copies of ''A' diary of civil and criminal postings of the cases' can be obtained by the petitioner on filing applications under the Rules of Practice, the provisions of the RTI Act shall not be resorted. The Apex Court observed that the Gujarat High Court Rules, by insisting the third party applicant to file affidavit stating the reasons for which the documents are required do not obstruct, deny or refuse information to the applicant and there is no inconsistency of the said Rules with the provisions of the RTI Act. The Court also observed that the non obstante clause under 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. of the RTI Act does not mean an implied repeal of the Gujarat High Court Rules and that the said special enactment framed in 1993 cannot be held to be overridden by the RTI Act, 2005, a later general enactment, simply because the latter opens up with a non obstante clause, unless there is clear inconsistency between the two legislations.
- Section 28 of the RTI Act deals with the power to make rules by Competent Authority to carry out the provisions of the RTI Act. Section 2 (e) (iii) of the RTI Act provides that the Chief Justice of the High Court shall be the Competent Authority in the case of a High Court. It is in exercise of the powers conferred under sub-section (1) of Section 28 of the RTI Act read with Article 235 of the Constitution of India the High Court of Kerala has made the Right to Information (Subordinate Courts and Tribunals) Rules, 2006 in respect of Courts subordinate to the High Court and the Motor Accidents Claims Tribunals.
- The Constitution Bench of the Apex Court in CPIO, Supreme Court of India v. Subhash Chandra Agarwal [(2020) 5 SCC 481: 2019 (5) KHC497], referring to the decision in Thalappalam Service Coop. Bank Ltd. v. State of Kerala [(2013) 16 SCC 82] has observed that, the right to information is not absolute and is subject to the conditions and exemptions under the Act. Since the petitioner has been informed that the copies of ''A' diary of civil and criminal postings of the cases' can be obtained on filing copy applications, there is no denial or refusal of information and none of the fundamental rights of the petitioner have been infringed.
DECISION
The writ petition was dismissed.
The Court cautioned the PIO that no sections quoted by the PIO to deny information (Sections 2.8(V), 3(a) and 8B of the RTI Act) could be traced in the RTI Act. While disposing of request for information, if any provisions of law are to be referred to, the PIO shall endeavor to quote the correct provisions.
[Citation: M.P. Chothy v. Registrar General, High Court of Kerala, WP(C) No. 23 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. 4 of 20 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. , decided on 20-07-20 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. ].
RTI Citation : RTIFI/2024/CIC/1501
Click here to view original RTI order of Court / Information Commission