Information at the court’s discretion: 

Information at the court’s discretion:

Context

The judiciary’s brazen disregard for the RTI has now got a stamp of approval from a high court

Backdrop

Resistance of the Indian Judiciary to 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.

Why the Non-engagement with the RTI?

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 story

RTI filed with the SC registry

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 rejected the application

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

This response challenged before the CIC

Mr. Misra challenged this response before the then Central Information Commissioner Shailesh Gandhi

Registry clarifies its position

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.

The Core Issue in the whole story

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.

SC Rules undermined RTI in four key ways

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.
• The Rules also make disclosures to citizens contingent upon “good cause shown

Information at the discretion of the Registry

In sum, the Rules allowed the Registry to provide information at its unquestionable discretion, violating the text and spirit of the RTI.

A Landmark ruling of the CIC :

CIC directs the Registry to respond to applications within the RTI framework alone

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.

The Author attempted to access the information

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.

Attempts failed

The Additional Registrar’s office told me quite transparently over the phone that it would simply not release the information.

An RTI vs Rules contest: Prolonging the battle

• 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.

Questionable decisions

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.

The Latest ruling

Six years on, this November, Justice Manmohan overturned Mr. Gandhi’s order. His judgment relies on four planks

• 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.

Analysis of the Current Ruling

• 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 untouchable registry: The nub (the crux or central point of a matter) of the matter is that the Supreme Court Registry wants to provide information at its absolute discretion

Brazen disregard to RTI: Its brazen disregard for the RTI has now got a stamp of approval from a court of record.

Conclusion

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.