Judicial hurdles

SHAILESH GANDHI, a Central Information Commissioner, recently said the Right to Information (RTI) Act faced a serious threat from the government and the judiciary. His warning came in the context of the woefully inadequate government-sanctioned resources and the number of stay orders issued by High Courts on the orders of State and Central information commissions. A recent judgment in the Delhi High Court questioned the power of the Central Information Commission (CIC) to enact regulations. The CIC has decided to appeal against this judgment in the Supreme Court.

On May 21, the judgment delivered by a Division Bench of the Delhi High Court in Delhi Development Authority vs Central Information Commission & Another created uncertainty over the smooth functioning of the CIC. The Bench comprising Justices Badar Durrez Ahmed and Veena Birbal struck down the rules on procedures for deciding appeals before the CIC under the RTI Act saying the Chief Information Commissioner had no power to enact such regulations. The Delhi Development Authority (DDA) had sought the quashing of the Central Information Commission (Management) Regulations, 2007, enacted by the Commissioner.

Section 12(4) of the RTI Act stipulates:

The general superintendence, direction and management of the affairs of the CIC shall vest in the Chief Information Commissioner who shall be assisted by the Information Commissioners and may exercise all such powers and do all such acts and things which may be exercised or done by the Central Information Commission autonomously without being subjected to directions by any other authority under this Act.

Section 15(4) of the Act gives similar powers to the State Information Commissions.

Interpreting these provisions, the Delhi High Court held that the Chief Information Commissioner could, arguably, prescribe regulations concerning its own internal management. He cannot promulgate or prescribe any regulations which impinge on the substantive or procedural provisions stipulated under the RTI Act and the Rules. The Chief Information Commissioner is a creature of the statute and unless the statute creating him invests him with a specific power, he cannot claim to exercise such power, the Bench said.

The Bench held that the RTI Act did not confer any power upon the CIC to make regulations, much less regulations that encroached upon the rule-making power of the appropriate government under Section 27 of the Act. This is because, as the court claimed, the Chief Information Commissioner does not fall within the definition of appropriate government or the competent authority. In other words, the Chief Information Commissioner has no power to make rules under Sections 27 or 28 of the Act. These provisions empower the appropriate government and the competent authority to make rules to carry out the provisions of the RTI Act.

The Bench further said that even if it were assumed, and merely as an extreme conjecture, that the Chief Information Commissioner did have the power to make such rules in the guise of regulations, the power had not been notified in the official gazette. They had also not been laid before the Houses of Parliament as provided under Section 29 of the RTI Act, it said. The Bench ruled that therefore the regulations framed by the Chief Information Commissioner could not be regarded as having any legal sanctity or validity.

While the High Court's judgment probably points to a flaw in the implementation of the RTI Act, which is curable if the stakeholders evince interest, the CIC's intervention in this case certainly has its merits.

In the complaint of an RTI applicant, Dr Sarabjit Roy, the CIC found enough grounds to enquire into the matter of the DDA's compliance with Section 4 of the RTI Act. The key provision enables suo motu disclosure of information by the authorities on the department's official website.

Effective compliance with this provision gives RTI applicants the opportunity to find the answers to the questions they proposed to send to the information officers. This lessens the work of the authorities, who, in the absence of compliance with Section 4, may be overburdened with RTI applications seeking answers to basic questions concerning facts regarding the functioning of a department.

On September 29, 2009, the CIC appointed a committee of three persons to go into the details of the servicing of the RTI Act by all wings and sections of the DDA. It was asked to submit its report within 45 working days. The members of this committee were Sujatha Chaturvedi, Director, Ministry of Urban Development; Dunu Roy of the Hazards Centre, New Delhi; and Pankaj K.P. Shreyaskar, Joint Registrar, CIC, Member Secretary.

Before making his complaint to the CIC regarding the DDA's non-compliance with Section 4 of the RTI Act, Sarabjit Roy had claimed a few reliefs in his RTI battle with the DDA regarding the ongoing modification of the Master Plan of Delhi for 2021. Among the reliefs were the following: a direction by the CIC to the DDA to deposit records with the CIC, the appointment of a single Public Information Officer, redesigning of the application form, provision of copies of 17 manuals to Roy by the DDA, and payment of compensation to Roy. Before the CIC's intervention, the DDA had not put out on its website even the Acts and Rules relevant to its functioning.

On July 24, 2009, the CIC observed that the DDA, in an effort to demonstrate compliance, had uploaded the information on its website, but it was incomplete and disorganised, which resulted in confusion rather than clarity. Therefore, the CIC directed the Vice-Chairman, DDA, along with the Principal Commissioner-cum-Secretary, DDA, to appear before it on September 3, 2009, to discuss the scope for further inquiry. However, on that day, the Vice-Chairman, DDA, failed to appear before the CIC, which drew adverse inference from his absence and appointed the three-member committee. The DDA challenged the CIC's powers in the case before the High Court.

The CIC claimed it had the power, under Regulation 20, to appoint a committee to inquire into the DDA's non-compliance with the RTI Act. The High Court held that the CIC could not delegate its power of inquiry under Section 18 to some other person or a committee of persons. Therefore, it found Regulation 20 to be in clear and gross violation of the RTI Act. The High Court also held the entire set of regulations as illegal.

Consequences of order

This omnibus ruling had several consequences. The court said compensation had to be linked to the loss or other detriment a complainant suffered. The court disapproved of the CIC's claim that in addition to awarding compensation to complainants, it could impose costs as it deemed fit on authorities who illegally denied information.

Regulation 22 enables the CIC to pronounce its orders in one of its sittings or on its website or communicate them to the parties concerned. The High Court, however, held that the CIC had no option but to pronounce its orders in open proceedings.

The CIC has nine Information Commissioners, including the Chief Information Commissioner. One of the provisions in Regulation 22 treats an order pronounced by a single Commissioner or by a Division Bench (two Commissioners) or by a Full Bench of three or more Information Commissioners as the decision or order of the CIC. The High Court, however, held that the RTI Act or the rules made thereunder did not enable the CIC to constitute Benches.

Regulation 23 enables the Chief Information Commissioner to decide as he thinks fit an application for special leave to appeal against or for a review of the CIC's decision. The High Court held that the CIC could not, through the regulations, assume the power to decide on review or grant of special leave to appeal.

The High Court observed that the CIC was not a court, and certainly not a body which exercised plenary jurisdiction. Therefore, it held that the CIC had no power to summon any person except to give evidence or to produce documents. The CIC was thus wrong in drawing an adverse inference from the absence of the DDA Vice-Chairman in the proceedings held on September 3, 2009, the High Court held. The court set aside the CIC's order to set up an inquiry committee to examine the extent of the DDA's compliance with Section 4 of the RTI Act, and quashed the CIC's Regulations as being ultra vires the RTI Act.

Uncertainty

The High Court's judgment created uncertainty over the smooth functioning of the CIC, with media reports indicating that some Information Commissioners sitting as Benches stopped taking petitions fixed for hearing before them.

Many RTI activists blame the Department of Personnel & Training (DoPT), the nodal government agency that handles the RTI Act, for creating hurdles by raising trivial clarifications through its circulars and letters. One letter, No.1/1/2009-IR dated 22.05.2009, from the DoPT to the CIC challenged the constitution of Benches by the Chief Information Commissioner.

Some RTI activists have, therefore, suggested crucial reforms to strengthen the RTI Act. They have suggested the repeal of Sections 27 and 28 of the Act, which give appropriate governments and competent authorities the power to frame their own rules, because they have been grossly misused.

Observers say it is impractical to expect all the Information Commissioners together to hear appeal petitions filed before them. Therefore, they say, the Chief Information Commissioner should have the power, as the head of a quasi-judicial body, to constitute Benches as he deems fit to ensure the smooth functioning of the CIC.

The minutes of the CIC's meeting held on May 25 show that it discussed the Delhi High Court's judgment and resolved to seek the advice of the Attorney General on some points in it. The CIC also resolved that the DoPT should be requested to notify expeditiously the amended rules already recommended so as to facilitate the continued smooth functioning of the Commission. (The CIC has not disclosed the amendments to rules it has recommended.)

On June 1, however, the CIC decided to appeal against the Delhi High Court's judgment in the Supreme Court taking into account a conflicting judgment by the Patna High Court in November 2009.

The Patna High Court had held that the State Chief Information Commissioner had the discretion to decide how to manage the affairs of the Commission, including entertainment and disposal of appeals. More important, it found nothing wrong with the Bihar State Information Commission (Management) Regulations, 2007, which allows Information Commissioners to sit singly while disposing of cases before them. It held that it was not necessary for all members of the Commission to participate jointly in all its functions.