Information at the court’s discretion

aniket aga

aniket aga  

A six-year-long farce concluded at the Delhi High Court on November 21, 2017, and the Right to Information (RTI) Act, 2005 is the worse for it. At issue was the right of citizens to get information from the Supreme Court , and by implication, India’s higher judiciary, which has strongly resisted the RTI. The apex court summarily rejects RTI requests, and insists that applicants exclusively request information under its administrative rules (Supreme Court Rules) framed in 1966, and re-issued with minor changes in 2014. To see why the High Court’s judgment strengthens a culture of opacity in the higher judiciary, we need to delve into the Supreme Court’s engagement, or rather persistent non-engagement with the RTI.

The background

In April 2010, a former schoolteacher, R.S. Misra, filed an RTI request with the Supreme Court Registry. He had earlier sent two letters to different Justices, essentially demanding redress in a case before the apex court that he had already lost. In an evident attempt at using RTI to fight a judicial battle already lost, he sought “action taken” reports on his letters.

The Registry could have lawfully disposed of this RTI request by simply stating that no such information was available. Instead, the Registry rejected the application, and asked Mr. Misra to apply under the Supreme Court Rules. Mr. Misra challenged this response before the then Central Information Commissioner Shailesh Gandhi.

In May 2011, appearing before the Commission, the Additional Registrar of the Court, Smita Sharma objected only to the use of the RTI, and not to Mr. Misra’s request per se. She maintained that the Supreme Court Rules alone governed access to the information he had sought. Claiming that the Rules were consistent with the RTI, she asked Mr. Gandhi to reinstate the primacy of Supreme Court Rules over the RTI, in line with previous Central Information Commission (CIC) rulings.

However, as Mr. Gandhi noted in his decision, the Supreme Court Rules undermined the RTI in four key ways. Unlike the RTI Act, the Rules do not provide for: a time frame for furnishing information; an appeal mechanism, and penalties for delays or wrongful refusal of information. Finally, the Rules also make disclosures to citizens contingent upon “good cause shown”. In sum, the Rules allowed the Registry to provide information at its unquestionable discretion, violating the text and spirit of the RTI. Consequently, Mr. Gandhi held that the Supreme Court Rules are inconsistent with the RTI Act, and that the Registry must respond to applications within the RTI framework alone.

A ruse

This was a landmark ruling. As many applicants, which includes this writer, have found, the apex court’s insistence on its own Rules for providing information is a ruse. Between 2014 and 2016, I attempted to access documents related to a disposed public interest litigation, filing requests under the Supreme Court Rules and the RTI Act. The Registry rejected both requests. The Additional Registrar’s office told me quite transparently over the phone that it would simply not release the information.

Returning to Mr. Misra’s case, faced with an adverse order from Mr. Gandhi, the Registry filed a writ petition before the Delhi High Court in 2011, prolonging the matter. In essence, the Registry turned Mr. Misra’s request into an RTI v. Rules contest, as it has done for others too.

Justice S. Muralidhar of the High Court stayed Mr. Gandhi’s decision immediately without addressing Section 23 of the RTI Act, which forbids courts from entertaining “any suit, application or other proceeding in respect of any order made under this Act”. The High Court did not justify how its writ jurisdiction applies to an appeal against a CIC order.

Another ruling

Six years on, this November, Justice Manmohan overturned Mr. Gandhi’s order. His judgment relies on four planks: Mr. Misra’s application went beyond the RTI; Supreme Court Rules are consistent with the RTI Act; the RTI Act cannot apply to the Supreme Court’s judicial functioning; and Mr. Gandhi should not have deviated from previous CIC rulings.

The first point is irrelevant, as the Registry could have disposed of the application under the RTI Act in 2010 itself. The issue before the High Court was the Registry’s refusal to abide by the RTI Act. The second and third points are in contradiction. If the RTI Act and Supreme Court Rules are mutually consistent, then why should the Registry privilege the latter? Moreover, Justice Manmohan did not examine the obvious contradictions between the two. And if the RTI does not apply to judicial functioning, then it is inconsistent with the Supreme Court Rules, and must be declared ultra vires or an overreach. The final point is even more untenable. The CIC is not a court of record and Commissioners are not beholden to prior decisions.

The nub of the matter is that the Supreme Court Registry wants to provide information at its absolute discretion. Its brazen disregard for the RTI has now got a stamp of approval from a court of record. The RTI has suffered another blow, not from the berated political class or the much maligned babus, but from the “gems of institutions” enjoined to protect the law.

Aniket Aga is an Assistant Professor at the University of Michigan Ann Arbor. E-mail: aaniket@umich.edu

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