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CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SM/A/2011/000237/SG/12351
Appeal No. CIC/SM/A/2011/000237/SG
Relevant Facts emerging from the Appeal:
Appellant : Mr. R. S. Misra,
S- 93, New Palam Vihar,
Phase- I, Gurgaon- 122017
Respondent : Mrs. Smita Vats Sharma,
CPIO,
Supreme Court of India,
New Delhi
RTI application filed on : 20/04/2010
PIO replied on : 07/05/2010
First Appeal filed on : 23/05/2010
First Appellate Authority Order of : 18/06/2010
Second Appeal filed before Commission : 05/02/2011
Information Sought:
The Appellant has sought information on nine queries pertaining to
inter alia action taken/ status
report on certain letters, reasons for judicial decisions, etc.
Information provided by Public Information Officer (PIO):
Queries 1 to 7: The PIO mentioned that the Appellant was represented
by Ms. Rachna Gupta,
Advocate in Petition for Special Leave to Appeal (Civil) Nos.
8219-8220 of 2010. Inspection can be
done and information/certified copies of the judicial records
/judgments of the Supreme Court of India
("Supreme Court") can be obtained by moving an application to the
Registrar (Copying), Supreme
Court under Order XII, Supreme Court Rules, 1966 (the "SC Rules") on
payment of prescribed fees
and charges.
Query 9: Under the RTI Act, it is beyond the scope and jurisdiction of
the PIO to interpret the law,
judgments of the Supreme Court or of any other Court, opine, comment
or advise on matters. The
information sought was not covered under Section 2(f) of the RTI Act.
Grounds for First Appeal:
Unsatisfactory reply provided by the PIO.
Order of the First Appellate Authority (FAA):
The FAA observed that the Appellant had addressed certain letters to
the judges in relation to his SLP
No. 8219- 8220/ 2010 and sought information about the action taken on
the same. The Appellant was
represented by a counsel in the said case. The inspection of the
documents and information relating to
judicial records can be done only under Order XII, SC Rules. Under
query 9, the Appellant had sought
the opinion of the PIO, does not fall within Section 2(f) of the RTI
Act. Hence, the First Appeal was
dismissed.
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Ground for Second Appeal:
Information was wrongly denied to the Appellant.
Relevant Facts emerging during Hearing held on May 6, 2011:
The following were present:
Appellant: Mr. R. S. Misra;
Respondent: Mrs. Smita Vats Sharma, CPIO & Additional Registrar and
Ms. Priyanka S. Telang,
Advocate.
The Appellant stated that he was seeking information about the action
taken on/ status report of his
letters, which must be provided to him as per the provisions of the RTI Act.
The Respondent did not produce any written submissions before the
Commission. The Respondent
relied on certain decisions (and the judgments quoted therein) of the
Commission in Manish Kumar
Khanna v. Supreme Court of India CIC/WB/A/2006/00940 dated 07/12/2007,
Rakesh Kumar Gupta v.
Supreme Court of India CIC/WB/A/2009/000553 dated 05/05/2009 and R. K.
Pandey v. Supreme
Court of India CIC/WB/A/2008/00777 dated 24/04/2008 and
CIC/WB/A/2009/00150 dated
20/02/2009. The main contention of the Respondent was that as per
Section 22 of the RTI Act, the RTI
Act shall have an overriding effect only when any other law was
inconsistent with the provisions of
the RTI Act. In this regard, the Respondent directed the attention of
the Commission to specific
portions of the decisions mentioned above (which have been quoted below).
Further, the Commission enquired of the Respondent whether she would
like to furnish arguments in
addition to the decisions cited above. The Respondent stated that she
did not wish to furnish any
further arguments and submitted that the Supreme Court already had a
specific provision to furnish
information under Order XII of the SC Rules and therefore, information
relating to judicial matters
may be provided only under the said provision. The Respondent further
argued that since the then
Chief Information Commissioner had upheld this contention in the
decisions cited above, their
arguments before this Commission were already covered under the said decisions.
The Commission enquired of the Respondent that where multiple routes
were available to a citizen for
obtaining information, was the citizen required to seek information
only in accordance with the SC
Rules. The Respondent stated that there were a number of queries under
RTI applications, which were
answered by the Supreme Court. However, to facilitate access to
records pertaining to judicial
proceedings/ matters, the applicants were apprised of the SC Rules,
which laid down the procedure for
obtaining the information in this regard.
The relevant portions marked by the Respondent in the decision of
Manish Kumar Khanna v. Supreme
Court of India CIC/WB/A/2006/00940 dated 07/12/2007 were:
"… The non-obstante clause of the Right to Information Act does not,
therefore, mean an
implied repeal of the Supreme Court Rules and orders framed
thereunder, but only an
override of RTI in case of 'inconsistency'. In this context, the
following observations of the
Hon'ble Apex Court in R.S. Raghunath vs. State of Karnataka — AIR 1992 SC 81 are
pertinent:
"The general Rule to be followed in case of conflict between the two
statutes is that
the latter abrogates the earlier one. In other words, a prior special
law would yield to
a later general law, if either of the two following conditions is satisfied.
(i) The two are inconsistent with each other.
(ii) There is some express reference in the later to the earlier enactment.
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If either of these two conditions is fulfilled, the later law, even
though general, would
prevail."
… This issue came again for consideration before the Hon'ble Apex
Court in Chandra
Prakash Tiwari vs. Shakuntala Shukla — A1R2002 SC 2322 and the Hon'ble Supreme
Court quoted with approval the Broom's Legal Maxim in reference to two
Latin Maxims in
the following words:
"It is then, an elementary Rule that an earlier Act must give place to
a later, if the
two cannot be reconciled - lex posterior derogat priori - non est
novum ut priores
lages ad posteriores trahantur (Emphasis supplied) - and one Act may
repeal another
by express words or by implication; for it is enough if there be words which by
necessary implication repeal it. But repeal by implication is never to
be favoured, and
must not be imputed to the legislature without necessity, or strong
reason, to be
shown by the party imputing it. It is only effected where the
provisions of the later
enactment are so inconsistent with, or repugnant to, those of the
earlier that the two
cannot stand together unless the two Acts are so plainly repugnant to
each other that
effect cannot be given to both at the same time a repeal cannot be implied; and
special Acts are not repealed by general Acts unless there be some
express reference
to the previous legislation, or a necessary inconsistency in the two
Acts standing
together, which prevents the maxim generalia specialibus non derogant (Emphasis
supplied) from being applied. For where there are general words in a later Act
capable of reasonable application without being extended to subjects
specially dealt
with by earlier legislation, then, in the absence of an indication of
a particular
intention to that effect, the presumption is that the general words
were not intended to
repeal the earlier and special legislation, to take away a particular
privilege of a
particular class of persons."
The differences between the Right to Information Act and the procedure
as prescribed by the
Supreme Court for conduct of its own practice and procedure have to be
looked into from
another angle also as to whether there is a direct inconsistency
between the two. In this
context, it may be mentioned that neither provision prohibits or
forbids dissemination of
information or grant of copies of records. The difference is only
insofar as the practice or
payments of fees etc. is concerned. There is, therefore, no inherent
inconsistency between the
two provisions.
Over and above, the Supreme Court Rules are particular or special law
dealing with a
particular phase of the subject covered by the Right to Information
Act and, therefore,
consistency is possible. It is a sound principle of all jurisprudence
that a prior particular law
is not easily to be held to be abrogated by a posterior law expressed
in general terms. The
said principle was accepted by the Hon'ble Supreme Court and expressed
by Justice
Mudholkar in the following words:
"A general statute applies to all persons and localities within its
jurisdiction and
scope as distinguished from a special one which in its operation is
confined to a
particular locality and, therefore, where it is doubtful whether the
special statute was
intended to be repealed by the general statute the court should try to
give effect to
both the enactments as far as possible." "
Based on the same, the then Chief Information concluded:
"U/s 22 of the RTI Act the provisions of the RTI Act have effect
notwithstanding anything
inconsistent therewith contained in any other law for time being
enforced or instrument
having effect by virtue in law other than this Act. However, since
both the Act and Order XII
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of the Supreme Court Rules provide for disclosure of information of
the kind sought in the
present case we find that there is nothing inconsistent in the rules.
It is only that Supreme
Court Rules 1966 through Order XII, Rule 2 prescribe the procedure for
obtaining the
information. This procedure together with fees is in the province of
the prescribed authority
u/s 28 of the RTI Act. This issue is disposed of accordingly."
The Respondent also relied on certain portions of the decision in R.
K. Pandey v. Supreme Court of
India CIC/WB/A/2008/00777 dated 24/04/2008 and CIC/WB/A/2009/00150
dated 20/02/2009, which
was marked as 1 and 2 by the Respondent, and is reproduced as follows:
"…We have, however, indeed found that Order No. XII of the Supreme
Court Rules 1965 is
not inconsistent with the RTI Act. Section 22 of the RTI Act is
overriding only in that it
requires that the provisions of the RTI Act "shall have the effect
notwithstanding anything
inconsistent therewith contained in any other law 1 for the time being
in force", including the
Official Secret Act, 1923.
Therefore, any law or Rule not inconsistent with the RTI Act is a law
or rule which must
stand notwithstanding coming into force the RTI Act. Appellant Shri
R.K. Pandey expressed
the apprehension that if this is the case every department will have
its own rules and laws
and the majesty of the RTI Act will be totally eroded. This, of
course, is not so because it is
not every public authority which has a right to frame rules. Under
Sections 27 and 28 of the
RTI Act this authority is only given either to the appropriate
Government or to the competent
authority'. The competent authority is clearly defined in Section 2
(e) of the RTI Act."
The Commission reserved the order during the hearing held on 06/05/2011.
Decision announced on May 11, 2011:
The Appellant has sought information about the action taken on/ status
report of certain letters. In
relation to queries 1 to 7, the PIO replied that inspection may be
done and information/certified copies
of the judicial records /judgments of the Supreme Court may be
obtained by moving an application
under Order XII of the SC Rules on payment of the prescribed fees. As
regards query 9, the PIO stated
that the information sought did not come within the ambit of Section
2(f) of the RTI Act. The
information so provided by the PIO was accepted by the FAA.
Dissatisfied with the same, the
Appellant filed a Second Appeal before the Commission. At the outset,
the Commission would like to
state that it will not delve into the merits of the information sought
by the Appellant. Further, the
Commission is satisfied with the reply of the PIO provided in relation
to query 9.
Based on the contentions of the Respondent and the decisions cited,
the main issue which arises for
determination before the Commission is where there were methods of
obtaining information from a
public authority in existence before the RTI Act, can a citizen insist
on obtaining the information under
the RTI Act.
The right to information is a fundamental right of the citizens of
India. This has been clearly
recognised by the Supreme Court in several decisions and subsequently,
codified by the Parliament in
2005. The RTI Act was enacted with the spirit of ensuring transparency
and access to information
giving citizens the right to information. It lays down the substantive
right to information of the citizens
and the practical mechanism to enforce the said right. Section 3 of
the RTI Act lays down that subject
to the provisions of the RTI Act, all citizens shall have the right to
information. The RTI Act is a crisp
legislation comprising of 31 Sections, which confer upon citizens, the
right to information accessible
under the RTI Act, which is held by or under the control of a public
authority. The scheme of the RTI
Act stipulates inter alia that information sought shall be provided
within the prescribed period,
formulation of a proper appellate mechanism and invoking of stringent
penalty where the PIO fails to
1 Underlined by us for reference.
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provide the information within the mandated period without reasonable
cause. The RTI Act is
premised on disclosure being the norm, and refusal, the exception. It
is legally established that
information requested for under the RTI Act may be exempted from
disclosure in accordance with
Sections 8 and 9 only and no other exemptions can be claimed while
rejecting a demand for disclosure.
Further, Section 22 of the RTI Act expressly provides that the
provisions of the RTI Act shall have
effect notwithstanding anything inconsistent therewith contained in
the Official Secrets Act, 1923, and
any other law for the time being in force or in any instrument having
effect by virtue of any law other
than the RTI Act. In other words, where there is any inconsistency in
a law as regards furnishing of
information, such law shall be superseded by the RTI Act. Insertion of
a non- obstante clause in
Section 22 of the RTI Act was a conscious choice of the Parliament to
safeguard the citizens'
fundamental right to information from convoluted interpretations of
other laws adopted by public
authorities to deny information. The presence of Section 22 of the RTI
Act simplifies the process of
implementing the right to information both for citizens as well the
PIO; citizens may seek to enforce
their fundamental right to information by simply invoking the
provisions of the RTI Act.
Given the above, two scenarios may be envisaged:
1. An earlier law/ rule whose provisions pertain to furnishing of
information and is consistent
with the RTI Act: Since there is no inconsistency between the law/
rule and the provisions of the
RTI Act, the citizen is at liberty to choose whether she will seek
information in accordance with
the said law/ rule or under the RTI Act. If the PIO has received a
request for information under the
RTI Act, the information shall be provided to the citizen as per the
provisions of the RTI Act and
any denial of the same must be in accordance with Sections 8 and 9 of
the RTI Act only; and
2. An earlier law/ rule whose provisions pertain to furnishing of
information but is inconsistent
with the RTI Act: Where there is inconsistency between the law/ rule
and the RTI Act in terms of
access to information, then Section 22 of the RTI Act shall override
the said law/ rule and the PIO
would be required to furnish the information as per the RTI Act only.
The Commission has perused the decisions cited by the Respondent and
noted that the then Chief
Information Commissioner has delved into the semantics of
interpretations of statutes. This
Commission agrees with the observations and the judgments quoted
therein which discuss the
overriding effect of a later general law over an earlier special law.
Based on these observations, this
Commission agrees that the RTI Act does not abrogate or repeal the SC
Rules. This Commission also
agrees with the observations of Mudholkar J., that "where it is
doubtful whether the special statute was
intended to be repealed by the general statute the court should try to
give effect to both the enactments
as far as possible".
The SC Rules as well as the RTI Act coexist and therefore, it is for
the citizen to determine which
route she would prefer for obtaining the information. The right to
information available to the citizens
under the RTI Act cannot be denied where such citizen chooses to
exercise such right, as has been
done by the PIO in the instant case. The Commission would like to
highlight that just as the SC Rules
put in place by the Supreme Court are not abrogated, the RTI Act
passed by the Parliament also cannot
be suspended. If the PIO has received a request for information under
the RTI Act, the information
shall be provided to the applicant as per the provisions of the RTI
Act and any denial of the same must
be in accordance with Sections 8 and 9 of the RTI Act only. In view of
the same, this Commission
respectfully differs with the decisions of the then Chief Information
Commissioner when he concluded
that since the SC Rules were not inconsistent with the RTI Act, the
citizen shall be required to obtain
the information under Order XII of the SC Rules.
In the instant case, the PIO had stated that there was a separate
procedure under Order XII of the SC
Rules for obtaining information and that the Appellant could obtain
the same only by following the
mechanism mentioned in Order XII of the SC Rules. In other words, it
appears that the Appellant
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would not be able to enforce the right to information available to her
under the RTI Act and have to
necessarily follow the procedure mentioned in the SC Rules. Moreover,
even where the Parliament has
guaranteed every citizen the right to information under the RTI Act,
the PIO, in the instant case, has
abrogated the same by directing the Appellant to obtain the
information in accordance with Order XII
of the SC Rules.
The Commission has noted that the PIO has rejected the request for
information under the RTI Act
without taking recourse to Sections 8 and 9 of the RTI Act, which is
clearly against the statutory
mandate. If the reply provided by the PIO is to be accepted, it would
negate the citizen's right to
information under the RTI Act and frustrate the implementation of the
latter. The RTI Act is a
reflection of the will of the citizens of India that has been codified
by the Parliament, and accepting the
reply of the PIO furnished in the instant case would render the RTI
Act redundant. Merely because
Order XII of the SC Rules provide for a mechanism by which certain
information may be obtained by
the applicant, does not mean that the citizen cannot exercise her
right to obtain the same information
by taking recourse to the RTI Act (subject always to the provisions of
Sections 8 and 9 of the RTI
Act).
In view of the aforesaid arguments, this Commission holds that it is
the citizen's prerogative to
decide under which mechanism i.e. either Order XII of the SC Rules or
the RTI Act, she would
like to obtain information. If the PIO has received a request for
information under the RTI Act,
the information shall be provided to the applicant as per the
provisions of the RTI Act and any
denial of the same must be in accordance with Sections 8 and 9 of the
RTI Act only; the
applicant cannot be forced to obtain the information as per Order XII
of the SC Rules.
At this juncture, the Commission would like to mention certain
decisions of the Supreme Court in CIT
v. A. Raman & Co. [1968] 67 ITR 11 (SC), which was upheld in CIT v.
Calcutta Discount Co. Ltd.
[1973] 91 ITR 8 (SC) and subsequently in UOI v. Azadi Bachao Andolan
[2003] 263 ITR 706 (SC),
where Shah J., observed as follows:
"… Avoiding of tax liability by so arranging commercial affairs that
charge of tax is
distributed is not prohibited. A tax payer may resort to a device to
divert the income before
it accrues or arises to him. Effectiveness of the device depends not
upon considerations of
morality, but on the operation of the Income Tax Act. Legislative
injunction in taxing
statutes may not, except on peril of penalty, be violated, but it may
be lawfully
circumvented..." (Emphasis Added)
Therefore, even when the State may lose revenue, the Supreme Court has
ruled that an individual tax
payer has the liberty to arrange her commercial affairs in order to
reduce her tax liability, so long as
such arrangement is within the operation of tax legislation(s).
Drawing an analogy, it certainly stands
to reason that a citizen should be able to decide on the method most
convenient and expedient by
which she would obtain information.
Having laid down the above, this Commission would now additionally
examine whether there is any
inconsistency between the RTI Act and Order XII of the SC Rules, and
if so, whether Section 22 of the
RTI Act shall override the provisions of the SC Rules. As discussed
above, Section 22 of the RTI Act
expressly provides that the provisions of the RTI Act shall have
effect notwithstanding anything
inconsistent therewith contained in the Official Secrets Act, 1923,
and any other law for the time being
in force or in any instrument having effect by virtue of any law other
than the RTI Act. Section 22 of
the RTI Act, in no uncertain terms, lays down that the RTI Act shall
override anything inconsistent
contained in any other law. Order XII of the SC Rules provides inter alia:
"1. Subject to the provisions of these rules, a party to any cause,
appeal or matter who has
appeared shall be allowed to search, inspect or get copies of all
pleadings and other
documents or records in the case, on payment of the prescribed fees and charges.
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2. The Court, on the application of a person who is not a party to the
case, appeal or matter,
may on good cause shown, allow such person such search or inspection
or to obtain such
copies as is or are mentioned in the last preceding rule, on payment
of the prescribed fees
and charges." (Emphasis added)
On a plain reading of Rules 1 and 2, it appears that citizens shall
have the right to access information
pertaining only to judicial matters i.e. documents/ records in a case.
Rule 1 allows only a party to any
cause, appeal or matter who has appeared to inspect and/ or obtain
copies of information pertaining to
judicial matters. However, Rule 2 allows a person who is not a party
to the case, appeal or matter to
inspect and/ or obtain information relating to judicial matters where
'good cause' is shown. In other
words, where a person is not a party to a case, appeal or matter, she
would be required to demonstrate
'good cause' before the Court before being allowed to inspect and/ or
obtain copies of the information
sought.
As per Section 6(2) of the RTI Act, an applicant making a request for
information under the RTI Act
shall not give any reasons for requesting the information. Under Rule
2, in order to determine what is
'good cause', it is necessary to enquire into the purpose/ reasons for
which an applicant is seeking
information. This is clearly violative of the statutory mandate of
Section 6(2) of the RTI Act.
Moreover, from the use of the word "may" in Rule 2, there appears to
be a certain discretion conferred
upon the Court to determine what amounts to 'good cause', and even
where 'good cause' has been
shown, whether such information shall be provided or not. This is a
clear embargo on the enforcement
of the fundamental right to information of citizens. Citizens would
have to justify any request for
information by demonstrating 'good cause' under Rule 2 and the
ultimate decision whether
information should be provided or not would lie with the Court. Rule 2
appears to create an exemption
in providing the information, which is not envisaged in Sections 8 and
9 of the RTI Act. At this
juncture, it would not be out of place to mention that the SC Rules
neither provide for a specific time
within which information shall be furnished, any appeal procedure, nor
any penalty provisions where
information is not provided.
Therefore, this Commission respectfully disagrees with the
observations of the then Chief Information
Commissioner and holds that Rule 2, Order XII of the SC Rules appears
to impose a restriction on
access to information held by or under the control of a public
authority, which is prima facie
inconsistent with the RTI Act. Therefore, in accordance with Section
22 of the RTI Act, the provisions
of the RTI Act shall override the SC Rules.
Further, as per the reply provided by the PIO, information can be
accessed by the Appellant on the
Supreme Court's website. As per Section 7(9) of the RTI Act,
information shall ordinarily be provided
in the form in which it is sought unless it would disproportionately
divert the resources of the public
authority or would be detrimental to the safety or preservation of the
record in question. The RTI Act
mandates that information shall ordinarily be provided in the form in
which it is sought or requested
for. It may not be out of place to mention that more than 90% of our
country's population does not
have access to computers and even where they do, may not understand
how to access the same.
Therefore, there is a duty cast upon the PIO to ensure that
information sought by an applicant is
provided in hard copy or in the manner requested by the applicant.
Where no specific mention is made
as regards the manner in which information must be furnished, it may
be presumed that the citizen is
seeking information in the form of hard copy. Moreover, even where the
PIO has indicated that the
information may be accessed from the website, the complete link/ web
address at which the requisite
information is available, must be furnished.
Before parting with the instant matter, this Commission has noted that
the Supreme Court, on various
occasions, has ruled that it is incumbent on public sector
institutions to be model employers following
all laws in letter and spirit. This Commission humbly submits that the
Supreme Court should become a
role model in implementation of the provisions of the Right to
Information Act, 2005 in its true letter
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and spirit and inspire all public authorities to follow its lead in
transparency. This would certainly
enable better delivery of the citizen's fundamental right to information.
In view of the foregoing arguments, this Commission respectfully
disagrees with the decision of
the then Chief Information Commissioner that the PIO, Supreme Court
may choose to deny the
information sought under the RTI Act and ask an applicant to apply for
information under
Order XII of the SC Rules.
This Bench further rules that all citizens have the right to access
information under Section 3 of
the RTI Act and PIOs shall provide the information sought to the
citizens, subject always to the
provisions of the RTI Act only.
Where there are methods of giving information by any public authority
which were in existence
before the advent of the RTI Act, the citizen may insist on invoking
the provisions of the RTI Act
to obtain the information. It is the citizen's prerogative to decide
under which mechanism i.e.
under the method prescribed by the public authority or the RTI Act,
she would like to obtain the
information.
The Appeal is allowed. The PIO is directed to provide the complete
information as available on
record in relation to queries 1 to 7 to the Appellant before June 5, 2011.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of
cost as per Section 7(6) of RTI Act.
Shailesh Gandhi
Information Commissioner
May 11, 2011
(In any correspondence on this decision, mention the complete decision
number.)(SRG)
--
उर्वशी शर्मा
"सूचना का अधिकार " हेल्पलाइन: 8081898081
yaishwaryaj@gmail.com
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