Jurisdictional Crisis: Information commissioners vs High Courts

By Sanjay Raman Sinha

Two legal authorities are at loggerheads over a point of law, and it is impinging on the basic rights of the citizenry. The information commission and the High Courts of the country are having a jurisdictional problem. The cause of the information commission has been raised by a group of fifteen sitting and retired information commissioners.

On September 9, 2021, a group of fifteen sitting and retired information commissioners addressed a letter to the Chief Justice of India, NV Ramana. The letter highlighted the problem of High Courts staying the orders of the information commissioners. The Supreme Court was urged to take action on the matter and resolve the impasse.

In the letter, the information commissioners had requested that directions be given to courts across the country to not entertain pleas against the orders passed by the Central Information Commission (CIC) or State Information Commissions (SICs). Shailesh Gandhi, an veteran RTI activist and a former Chief Information Commissioner (CIC) has spearheaded the move. He argues: “In some cases, stay are being granted by the High Courts. The Constitution says that appeal may be made at High Court only for the protection of fundamental rights. But people are using writ to file appeal at the High Court against the orders of the information commissioners and chief information commission officials. This should stop. The Court should explain how it falls under the writ jurisdiction. Many orders are given which are against the judgments of the Supreme Court. The other problem is that the High Court gives judgement without giving reasons.’’

The letter had also invoked certain landmark case precedents and Article 226(3) of the Constitution to direct High Courts to dispose of the applications made for stay in the absence of information commissioners. “Article 226 (3) of the Constitution clearly lays down that where a stay has been obtained without the participation of the respondents, the High Court shall dispose of the application within a period of two weeks from the date on which the petition for vacation of the stay is made. If this is not done, the stay stands vacated. This is not being implemented across the nation”, wrote the information commissioners.

Dr GV Rao, senior advocate at the Supreme Court, makes his point: “High Court is within right to hear such cases, even from lower courts. However, due reason should be noted in the judgement so that the party doesn’t gets confused.”

Gandhi adds: “Article 226(3) of the constitution clearly lays down that where a stay has been obtained without the participation of the respondents, the High Court shall dispose of the application within a period of two weeks from the date on which the petition for vacation of the stay is made. If this is not done, the stay stands vacated. This is not being implemented across the nation.”

Justice Ishwar Sahay Srivastava, former judge at the Indore bench of the Madhya Pradesh High Court, says: “Section 23 of the Right to Information (RTI) Act, 2005, gives almost absolute powers to the information commissioner. It holds that ‘No court shall entertain any suit, application or other proceedings in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act’. Clearly under the Right to Information Act, the right to final appeal is with the CIC. How can the High Court interfere?”

Wajahat Habibullah, India’s first CIC and a former officer from the Indian Administrative Services, who helped set up the institution, says: “This is a procedural matter. It is good that the former CICs have written to the CJI. There should be an understanding between the CIC and the judges; both are judges. They are actively involved in establishing the law. What I feel is that it is a question of attitude, and it can be resolved by understanding between the CIC and the CJI. This understanding can then percolate down and courts and the commission can imbibe and cooperate amicably.”

Sridhar Acharyulu, former CIC and a signatory of the letter, adds: “Initially, the Supreme Court thought that the information commission is a court like institution and only law officers should be appointed. In the first case, judgment was reversed in the review. In revising the judgment, the reasoning was correct but the conclusion was wrong. In the second judgment, the reasoning was not correct but conclusion was right. That is the dilemma.’’

Acharyulu goes on to elaborate: “They have not given proper recognition to the information commission. It is assumed to be neither an administrative body nor a quasi judicial body. This is the root of the confusion. The 2019 judgement talks about the scope of the right to information in which the Supreme Court has given commentary on each and every section. The CIC order should be considered final. A penalty order of CIC can be challenged in a writ petition in a review, but there is no third appeal. Third appeal means that penalty can be challenged. What is happening is that the general review powers of the courts are being invoked to challenge the information commission orders, both by the government and the public. Third appeal is not permissible. That is the whole problem. Before granting stay, the High Court should understand that the the information Commission is an autonomous body which can give independent decisions unless there is an illegality which demands intervention. The thin line between the third appeal and the writ petition is missing. This line is not adhered to.”

Justice Srivastava speaks from his personal experience. “There is a system in the justice process. The court of information commission is also a court of law. The judgement is held final only after a pronouncement is given in the review. Similarly, the decision of the information commission is also considered final if and when the appeal is disposed off. However, though the information commission judgement is binding, the petitioner is given writ jurisdiction. The aggrieved has the procedural right to approach the High Court,” he says.

In July 2019, the government introduced in Lok Sabha the Right to Information (Amendment) Bill, 2019, which proposed to give the centre the powers to set the salaries and service conditions of information commissioners at the central as well as state levels. Later, it was passed and incorporated in the law, but not without vehement protests by the Opposition and activists. The Bill leading to the original Act had been discussed by the Parliamentary Committee on Personnel, Public Grievances, Law and Justice, which included then BJP members Ram Nath Kovind (now the president), Balavant Apte and Ram Jethmalani. The RTI Act is regarded as one of the most progressive laws of independent India. It has given ordinary citizens the confidence and means to question the government authorities. Nearly 60 lakh applications are being filed every year.

Gandhi gives context to the issue: “The first Bill on RTI was presented in Parliament in 2004. In the Bill, the status of the information commissioners were kept less. Later on, a parliamentary committee was formed in which eight persons of the current government were members. Ram Nath Kovind was also one of them. The committee members had said that information commissioners should be given proper status. But now when the government has come to power, they have changed their tune. This is a matter of regret. This writ is wrong. It is an assault on the basic rights of the people.”

Wajahat says that he had strong views on the amendment. He says: “This amendment needs to be debated. Debate and discussion is an age-old tradition of India. The amendment can be questioned; debate is necessary. The amendment has made the law weak. I and all the information commissioners had appealed to the government to not go ahead with the amendment. We had told the government that the move will compromise the status and powers of the information commission. Unfortu­nately, now the commission has come under government control. I am afraid to say that the information commission is not putting up a spirited fight against the government, nor is asking uncomfortable and right questions.”

Rao adds: “The government wants to control everything. Though the right to information has been made a basic right, the government wants to hold the reins of the information commission. As for the High Court, though it has writ powers, the present decision is not fair. The courts should relook the matter and resolve it.”

Official file noting is an essential part of information seeking in RTI. However, during the initial days, there was a lot of noise and controversy about sharing official file notings under RTI. Wajahat took a principled stand on the issue and the government had to toe the line. In June 2009, Wajahat, the then chief information commissioner, issued notices to two officers of the Department of Personnel & Training (DoPT), saying they would be prosecuted for not following the CIC orders. Under pressure from the CIC, the Union government then decided to make available file notings of government decisions—except those taken by the 18 exempted organisations—under the RTI Act.

Wajahat reminiscences: “Official file notings as per my reading of Section 2 of the RTI Act, are information. Interestingly, when I started ruling that file notings are information and should be given, there was an adverse reaction. The government started questioning who had given me the right to rule this way? I said, am I not the chief information commissioner? Do I need your permission to rule that file notings are in fact information?”

Right to information has become a campaign today. RTI activists are seeking information to expose the corruption of government departments and officials. However, cases like extortion, attempted kidnapping, harassment under SC-ST Act and threats are registered against the worker, and they are silenced. The flip side is that some unscrupulous elements are using the RTI for extortion. This has given a bad name to the movement.

Gandhi, an RTI activist himself, is quiet vehement on the issue. He says: “On the basis of the information they are privy to, even some mediamen resort to blackmailing. It is wrong to hold that blackmailing is being done via RTI. This is instigating people to attack the RTI activists. I strongly believe that it is wrong to misuse the RTI.”

Sridhar backs Gandhi and says: “If misuse of RTI is happening then the government should take action. But that shouldn’t be a reason to limit the right. Instead action should be taken against the wrongdoer or the blackmailer.”

Then there is a problem of frivolous queries. Various questions are being asked from the prime minister’s office (PMO) under the RTI Act. After Modi became the prime minister, the number of strange questions has increased. For example, what is the internet speed in Modi’s office? Why is PMO called Department of Government? Which mobile has been given to Modi by PMO and what is his number? What is the purpose of RTI containing such information?

Sridhar concurs with the charge and says: “I agree that to ask irrelevant questions using the RTI is also an abuse of the right. But the percentage of people indulging in frivolous information seeking is less as compared to the serious applicant.”

The discussion finally veered back to the basic issue of jurisdictional intersection and clash. Rao holds: “The High Court has a constitutional problem in hand. The matter raised by the fifteen former CICs is relevant and important. Interference in commission’s decision should be stopped.’’

The letter to the prime minister holds. “We would like to point out that a  significant number of stays do not fall in the writ jurisdiction of High Courts and are appeals labelled as writs. It is submitted that after staying the statutory order of the information commission, most cases languish and citizen’s fundamental right under Article 19 (1)(a) is violated. It appears that parliament was conscious of this and hence proscribed further appeals after the Commission.’’

Gandhi adds: “The order by the High Court was given without rhyme or reason. Why the decision of the information commissioners are coming under writ? The court should explain the matter. Article 226 is not being pro­perly followed. The courts have rights, but the judgment has to have a rationale and most importantly the courts should stay within the prescribed constitutional limits.”

Justice Sahay comments on the judgment. “On the lack of rationale in the judgment, I would like to say that when the petition is filed the reason is specified in the plea. If one of the parties indulge in dilatory or delaying tactic then the court may give a judgement on the basis of arguments. This judgment can be basic. However, any judgment can be challenged. Right to be heard is an inalienable right,’’ he says.

In a final note, Wajahat places on record his views. “The Information Commission has taken its roots firmly in the firmament of Indian law and society. The relation of the government, courts and the citizen is largely based on the basis of the confidence of impartiality and transparency this right promises. I must dare say that the commission is not criticising the government as freely and as often through its decisions, as it should. This should be brought to the notice of the prime minister. I remember that once Prime Minister Narendra Modi had said that “the answers to queries are a lesson for us. We should learn from them. It is the grievance of the people in their own voice. I request the prime minister that the hope he has given should materialise.”

Clearly the clash of jurisdiction has not only brought to the fore issues sensitive to the right to information but has also made apparent the procedural and legal complications embedded in the relationship of judiciary and the information commission. The sooner it is sorted out, the better it will be for the constitutional health and basic rights of the citizens.
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