Now protecting RTI from the judiciary?

BY Madabhushi Sridhar| IN Media Freedom | 08/10/2014
Numerous attempts have been made to amend or weaken the RTI but the latest came from an unusual quarter - the High Court of Madras. But this time too public opinion, through a vibrant media, has stymied it,
says MADABHUSHI SRIDHAR (PIX: The Indian Express Archive).
It is heartening to see people protecting the law that works for them. As the Right to Information Act turns nine on 12 October, it can celebrate the fact that all attempts to dilute it over the years have been stalled by the people, efforts which in turn have been reported by the media.
 
Numerous attempts have been made to amend or weaken the RTI but the latest came from an unusual quarter – the High Court of Madras. An RTI application in the court had sought information on how the court appoints its administrator, known as the Registrar. 
 
The court’s ruling on 17 September stated:
 
Para 20: “…the information seeker must disclose at least with bare minimum details as to what is the personal interest or the public interest, for which such information is sought. If such details are either absent or not disclosed, such a query cannot be construed as the one satisfying the requirement of the RTI Act…”
 
Para 21: “…such right being a facet of the freedom of "speech and expression", as contained in Article 19(1)(a) of the Constitution of India, is always subject to reasonable restriction…. an applicant must disclose the object for which such an information is sought and also satisfy that such object has a legal backing…”
 
What the judges ignored, or seemed unaware of, was an important provision of RTI, namely Section 6(2), which states: “An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him.”

In their order, the judges said: “We should not be mistaken as if we are saying something against the intention of the Legislature”. And yet their conclusions were diametrically opposed to what Parliament intended by giving RTI to the people.
 
As news of this decision was published, criticism poured in. Several activists challenged the decision. “Why should a citizen disclose the name and reasons for seeking information?”; “The judiciary seems to be afraid of this transparent law’; ‘’Why does the High Court order not mention Section 6(2)?”; “It isan illegal order”; “It is against the letter and spiritof the RTI Act”.
 
There was more: “It is a self serving order, which prevents administrative transparency of the court”; “The High Courtis trying to dampen the spirit of the RTI Act”; “They are trying to suppress the RTI Act to hide irregularities and corruption in the judiciary”; “It strikes a body blow to RTI as it is tantamount to striking down section 6(2) without explicitly stating so”; “The order goes against the spirit of the RTI Act and the constitutional guarantee of freedom of expression”.
 
After severe criticism from different quarters,the court, on 23 September 2014, suo moto, took the order for review:
 
“In the said order dated September 17, 2014, we have made certain general observations in paragraphs 20 and 21, stating that the RTI application should contain bare minimum details or reasons for which the information is sought. However, the said general observations were made without noticing Section 6(2) of the RTI Act, 2005…”
 
Usually  a review application has to be filed by  the affected party if they can show an error on the face of the order, the High Court suo moto taking  the order for review is significant.
 
The RTI Act, with its simple text and easily understandable provisions, is more popular than thousands of laws drafted with complex syntax. People knew that the High Court’s observation was against the simple Section 6(2) provision. It is difficult to understand why it was not noticed by highly experienced lawyers and judges.  
 
The information being sought was about the recruitment of the Registrar General of the Court. The Court stated that the Public Information Officer’s reply that no such rules existed was sufficient basis for refusing access to information because no such information was held by the Registry.
 
In an earlier casein 2012 as well, the Supreme Court was forced to revise one of its judgments after the judgment was criticized for going against the legislative intention and text of the RTI Act. Then too, a surge of public opinion in defence of RTI saved it.
 
Whenever the Governmenthas proposed to diluteRTI, public opinion, through a vibrantmedia, hasstymied it. Within one year of the Act, in 2006, the UPA cabinet decided to amend the Act to exempt file notings, except those relating to development and social issues,and prevent access to information about the public examination and evaluation of an individual for appointment in the government. 
 
But constant opposition by RTI activists prevented the government from introducing the amendment. Another attempt at dilution in 2010 – by defining frivolous and vexatious RTI applications –was also defeated following strong criticism. This attempt was finally abandoned in 2012.  
 
However, last year, the UPA government tried to remove political parties from the RTI ambit by declaring, by ordinance, that political parties were not ‘public authorities’, a decision that flew in the face of the Central Information Commission’s decision that, given the substantial funding they received from the government, a political party should be treated as apublic authority under RTI.
 
If the ordinance had been passed, political parties, by virtue of not being public authorities, would have been able to refuse to respond to RTI applications for information.  The proposed ordinance would have given an explanation of what precisely the term ‘public authority’ meant. But the ordinance was famously torn up by Rahul Gandhi last year at a press conference.
 
What we are seeing is the people guarding laws that give them access to information with extreme vigilance. The judiciary is highly reputed for protecting the rule of law. But it is unfortunate that people have to build up strong opinion to protect RTI from some anti-access orders by the judiciary.
 
Some judicial orders, such as the one by the Madras High Court mentioned earlier, need to be reviewed and reversed in the interests of transparency.  For the average citizen, the Madras High Court’s ruling on the Registrar case raised some obvious questions.
 
Why is the High Court refusing to give information about the appointment of its administrator, the Registrar? If there is nothing wrong with the process, why not disclose it? Is there any basis forthe claim that the independence of the judiciary lies in non-disclosure of information about how a Registrar is appointed?
 
The RTI is a great achievement, the result of people’s movement against corruption. The people are protecting it. So should the judiciary.
 
Professor M. Sridhar Acharyulu (Madabhushi Sridhar) is Central Information Commissioner in New Delhi. He can be contacted at professorsridhar@gmail.com. 
 
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