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Why RTI needs to be supreme -Shailesh Gandhi
-The Hindustan Times

In a recent order, the Supreme Court dismissed a petition filed by the Karnataka information commissioner as “frivolous”. It also went on to impose costs of  Rs. 1 lakh.  A closer analysis proves that this case has far reaching implications for the fundamental rights of a citizen, rights that have been codified in the Right to Information Act.

The particulars are as follows. A Right to Information (RTI) applicant had initially sought information from the Karnataka High Court. The court’s Public Information Officer (PIO) had refused to disclose this information on the grounds that the citizen must seek the required information by following the rules of the Karnataka High Court itself. As per the RTI Act, information can only be refused under the provisions of Sections 8 and 9. So the state’s information commission, as a consequence, did not agree with the PIO. It asked him to provide the needed information under the RTI Act.

The Karnataka High Court went on to name the applicant as the respondent in a case that saw it quash the commission’s order. The commission decided to take the matter to the Supreme Court where an information commissioner filed the petition. The Supreme Court took umbrage at the fact that an information commissioner had filed the petition. It went on to say that the commission and commissioner have no locus and also added that by challenging the high court order, they were both only wasting public money.

It is my belief that both the high court and the Supreme Court have failed to address a very important point of law. Section 22 of the RTI Act makes explicit the fact that if there is any inconsistency in a law with regard to the furnishing of information, such a law shall be superseded by the RTI Act. The insertion of a non-obstante clause in Section 22 of the RTI Act was a conscious choice made by Parliament to safeguard the fundamental right to information from convoluted interpretations of other laws and rules that are adopted by public authorities to deny information. Section 22 of the RTI Act simplifies the process of implementing the right to information, both for citizens as well as the PIO; citizens may seek to enforce their fundamental right to information by simply invoking the provisions of the RTI Act. Without addressing the provisions of Section 22, the Supreme Court has, by this order, sanctified and legitimised the denial of information by public authorities, who claim that there are rules to disclosure. This could have the effect of nullifying the impact and effect of the RTI Act in a serious way.

I believe information commissions have a justifiable duty to pursue and champion the provisions of the RTI Act. Very few commissioners do this, and the Supreme Court’s strictures on a legitimate exercise by a statutory authority is unfortunate. This would discourage commissions from pursuing their duties.

Logically, anyone who is a respondent or a petitioner has locus in a case.  I must point out that there is confusion in the courts about who should be named respondents when an RTI decision of the information commission is challenged in a writ. The Karnataka and Bombay high courts ask the commission to assume the role of a respondent in many cases, while the Delhi High Court has refused to accept the information commission as a respondent for the last two years. The only unexplained exception was in WP 3318/2012 when the court named me a respondent for discharging legitimate duties as an information commissioner. In such circumstances, the Karnataka commission could not have had clarity about whether or not it should file a petition. If a citizen can file a PIL, is it so objectionable for an information commission to challenge a major dilution to the RTI Act? Though we recognise the Supreme Court’s jurisdiction, it does seem to have publicly reprimanded a statutory authority without compelling reason. This could be a major setback for transparency and democracy in India.

Shailesh Gandhi is a former Central Information Commissioner. The views expressed by the author are personal.