High Court Rules under Article 225 vis-à-vis RTI Act: A flawed approach?

The Supreme Court of India recently delivered a judgment in Chief Information Commissioner v. High Court of Gujarat and another, by which it restricted providing information held by a High Court on the judicial side under the Right to Information Act (RTI Act).

Restricting the use of the RTI Act for seeking information held on the judicial side, the Court held,

However, the Court made it clear that information held by the High Court on the administrative can be provided under the RTI Act.

To comprehend the effect of this judgment on the scope of the RTI Act, it is imperative to understand that High Courts perform two kinds of functions - judicial functions and administrative functions.

Similarly High Courts have two kinds of rule making powers: rule making power under Article 225 of the Constitution of India; and rule making power under Section 28 read with Section 2(e)(iii) of the RTI Act.

Article 225 of the Constitution of India empowers the High Court to make rules regarding proceedings and other matters connected to the High Court, whereas Section 28 of the RTI Act empowers the Chief Justice of the High Court to make rules to carry out the provisions of the RTI Act.

In this case, the issue for consideration before the Court was:

1. Whether Rule 151 of the Gujarat High Court Rules, 1993 stipulating that for providing copy of documents to the third parties, they are required to file an affidavit stating the reasons for seeking certified copies, suffers from any inconsistency with the provisions of RTI Act?

2. When there are two machineries to provide information/certified copies – one under the High Court Rules and another under the RTI Act, in the absence of any inconsistency in the High Court Rules, whether the provisions of RTI Act can be resorted to for obtaining certified copy/information?

Rule 151 of the Gujarat High Court Rules, 1993, stipulates that if the certified copy is sought by a person who is not a party to the litigation, his application has to be accompanied by an affidavit stating therein the purpose for which he requires the certified copies.

Whereas 6(2) of the RTI Act specifically provides that an applicant making a request for information shall not be required to give reasons for requesting the information sought.

It was contended that in view of the inconsistency between the provisions of the RTI Act and the Gujarat High Court Rules, the provision of the RTI Act must prevail, as Section 22 of the RTI Act specifically provides that the provisions of the RTI Act will have an overriding effect over any other laws for the time being in force.

Therefore if an applicant seeks certified copies under the RTI Act, he must not be required to file an affidavit stating reasons and purpose for seeking the information.

After hearing the contentions of the parties, while examining the first issue, the Supreme Court held,

“Rule 151 of the Gujarat High Court Rules stipulating a third party to have access to the information/obtaining the certified copies of the documents or orders requires to file an application/affidavit stating the reasons for seeking the information, is not inconsistent with the provisions of the RTI Act; but merely lays down a different procedure as the practice or payment of fees, etc. for obtaining information. In the absence of inherent inconsistency between the provisions of the RTI Act and other law, overriding effect of RTI Act would not apply.

The information to be accessed/certified copies on the judicial side to be obtained through the mechanism provided under the High Court Rules, the provisions of the RTI Act shall not be resorted to, the information held by the High Court on the judicial side are the personal information of the parties and hence cannot be disclosed under RTI Act.”

So far as persons who are not parties to the proceeding are concerned, the Court held that such persons can obtain the certified copies or can have access to the information under High Court rules only after filing an application/affidavit stating the reason for which the information/copies of documents or orders are required. It was held that and stipulation does not suffer any inconsistency with Section 6(2) of the RTI Act.

Whereas for Information held by the High Court on the administrative side, the Court held that it is the option of the applicant to seek information under rules framed by the High Court under Section 28 read with Section 2(e)(iii) of the RTI Act 2005 or rules framed by the High Court under Article 225 of the Constitution.

The Bench further held that the information held by the High Court on the judicial side is personal information of the parties to the litigation or information furnished by the government in relation to a particular case.

The information is held by the High Court as a trustee for the litigants in order to adjudicate upon the matter and administer justice and hence such information can be shared to the parties to the proceeding only under High Court rules and not under RTI Act, the Court held.

For persons who are not a party to the proceeding, such information or certified copies can be given only under High Court Rules, provided the competent authority is satisfied that the information is sought for bona fide reasons or to effectuate public interest.Scope of ‘personal information’ under RTI Act

From a fair reading of Section 8(j), it becomes amply clear that even in case of “personal information”, if the competent authority is satisfied that larger public interest exists in disclosing such “personal information”, the information is disclosed under the RTI Act and such decision of the competent authority to disclose or not to disclose the information is appealable.

So even under the RTI Act, there is a sturdy check on the misuse of personal information. However, the Court has failed to notice this aspect of the RTI Act while declaring that information held by High Courts on judicial side is “personal information” of the litigants.

The information held by the High Court on the judicial side, except information pertaining to in camera proceedings, cannot be treated as ‘personal information’ to deny access under the RTI Act, as such information of parties to the proceedings like judgments, orders, etc are available on the websites of respective High Courts and other public domains. Such information is even made public when matters are adjudicated and evidence, statements etc. are read in open court. This finding on “personal information” is against the spirit of a law which is made to appreciate disclosure and depreciate secrecy.

Judicial overreach and the issues overlooked

It is humbly submitted that information under the RTI Act can only be denied if it falls within the purview of Section 8 of the RTI Act, which provides exemption from disclosure of information, and the information held by any High Court on the judicial side is not exempted under this provision.

Extending the scope of Section 8 is an act of judicial overreach and would technically amount to amendment of the provision, which is purely a legislative function.

It is humbly submitted that the ruling of the learned judges of the Supreme Court is erroneous, as on the one side, it is declaring the information held by it on judicial side as the “personal information” of the litigants, whereas on other side, apart from third parties, it is restricting even the parties to the litigation to seek such information under RTI Act.

In effect, even the persons to whom such “personal information” belongs, cannot seek information under the RTI Act, though such information could be provided to them under rules framed by High Courts under Article 225.

Scope of ‘personal information’ under RTI Act

From a fair reading of Section 8(j), it becomes amply clear that even in case of “personal information”, if the competent authority is satisfied that larger public interest exists in disclosing such “personal information”, the information is disclosed under the RTI Act and such decision of the competent authority to disclose or not to disclose the information is appealable.

So even under the RTI Act, there is a sturdy check on the misuse of personal information. However, the Court has failed to notice this aspect of the RTI Act while declaring that information held by High Courts on judicial side is “personal information” of the litigants.

The information held by the High Court on the judicial side, except information pertaining to in camera proceedings, cannot be treated as ‘personal information’ to deny access under the RTI Act, as such information of parties to the proceedings like judgments, orders, etc are available on the websites of respective High Courts and other public domains.

Such information is even made public when matters are adjudicated and evidence, statements etc. are read in open court. This finding on “personal information” is against the spirit of a law which is made to appreciate disclosure and depreciate secrecy.

Availability of two mechanisms

While examining the other issue regarding availability of two mechanisms to obtain information, the Court appreciated the view taken by Delhi High Court in the case of The Registrar Supreme Court of India v. RS Misra, wherein it is held that

“once any information can be accessed through the mechanism provided under another statute, then the provisions of the RTI Act cannot be resorted to”.

Accordingly, the Court held that when the High Court Rules provide for a mechanism that the information/certified copies can be obtained by filing an application/affidavit, the provisions of the RTI Act are not to be resorted to. The provision of the Gujarat High Court Rules mandating filing of affidavit with application stating the reason for which the information/copies are sought, is not inconsistent with the RTI Act, the Court held.

It is humbly submitted that while holding such a view, the Apex Court failed to notice that it barred everybody including ‘strangers’ to the litigation, to seek information/certified copies under RTI Act and to seek information/certified copies under respective High Court Rules.

So it is the subjective satisfaction of the competent authority that will decide whether information held by the High Court on judicial side can be provided or not to the ‘strangers’ under Rules framed by the High Court under Article 225 of and such decision of the competent authority is final and not thus not appealable. The High Court rules do not provide any guiding or objective criteria for the competent authorities to follow to decide that the information is sought for bona fide reasons or to effectuate public interest.

Consequently, in the absence of any right to seek information/certified copies under RTI Act, when a ‘Stranger’, who is not a party to the litigation, is denied information or certified copies, he becomes remediless, as he is also barred from seeking information/certified copies under the RTI Act. This severely affects his right to seek information, which is an inalienable part of Article 19(1)(a) of the Constitution of India.

Moreover, the Apex Court has not appropriately appreciated Section 22 of the RTI Act which states,

“The provisions of this 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 this Act.”

By virtue of Section 22, even if there exist some provision or mechanism under High Court Rules mandating filing of affidavit stating the reason for which the information/copies of documents or orders is sought, the provisions of the RTI Act shall prevail.

Such provision under the High Court Rules is clearly inconsistent with Section 6(2) of the RTI Act, which states that 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.

The Court erred in holding that,

“once any information can be accessed through the mechanism provided under another statute, then the provisions of the RTI Act cannot be resorted to.”

If that were the case, every public authority having rule making powers will have their own rules, undermining transparency and accountability, and will start denying information sought under the RTI Act, citing the reason that an alternative ‘efficacious’ mechanism (as held by the Court) is available under their own rules for seeking information.

In the event of availability of two mechanisms for seeking information i.e RTI Act and Rules framed by High Courts under Article 225, instead of restricting the former completely, the Apex Court could have made a harmonious construction between the two mechanism, as done by the court in the case of Institute of Companies Secretaries of India v. Paras Jain.

In that case, it was held that when two avenues of seeking information are available, it is up to the applicant to choose either of the routes. To sum up, the present view adopted by the Supreme Court has the potential to result in the weakening of the RTI Act.