(Prof Madabhushi Sridhar)
Ambiguity is antidote of transparency. Mystery of legal language takes out the possibility of realization of the right and leaves scope for contradictory interpretations facilitating injustice. The Authentic Book on RTI by Sri Shailesh Gandhi and Sri Pralhad Kacheri is easily accessible because it is copyleft, (i.e., not copyrighted) and it is also easy to read and understand.
(Note: The hard copy of the book is priced) The authors introduced transparency into RTI Act by removing the ambiguities that crept in because of legalese and its multiple interpretations. The authors strongly pleaded, in preface, for implementation of the RTI Act with positive interpretation of its ‘expression’ as passed by the Parliament.
This means that the interpretation contradictory to expressions of the Act on the face of it, if done by any authority like Information Commissions or constitutional courts, should not become impediments in disclosure of information held by the public authorities. The book raised certain critical constitutional challenges.
Finality of Commission’s order No scope for unending appeals: A critical issue brought out by this book is that whether RTI request should be converted into an ordinary litigation resulting in ‘adjourning’ the finality landing in labyrinths of cases before Constitutional Courts or should it assume finality with the Commission. Whether second appeal should lead to 3rd, 4th and 5th appeals also? Finality and binding nature: Section 19(7) talks about binding nature of the Commission’s order, while Section 23 provided finality to its action. The demand for information generally ends with the RTI Act in second appeal. No further proceedings are contemplated. The judicial review is an additional constitutional remedy available in general, though not mentioned under this Act. The author raised a vital point of constitutional importance that writ under Article 226 cannot be used as ‘third appeal’.
There is a slight but definite difference between Article 226 petition for writ of certiorari and the non-existing third appeal. Sometimes this line is getting blurred. That is the matter of the judicial process, and beyond the domain of the Commission. Of course, citizens are free to research examine and challenge whether any ‘difference’ is maintained. State, a big litigant: In foot note 47, the author brought out an important aspect stated by Maria Elena Peris Jean, the former Information Commissioner from Mexico, whether the public authority can file writ petition only in security related matters and in all other matters only denied citizen could litigate in Constitutional courts.
This challenge is worth considering in Indian context where the State is found to be biggest litigant, as agreed by the Prime Minister on 2nd November 2016 and endorsed earlier by the Law Commission and National Litigation Policy. The Need for Judicious interpretation Parliament’s Constitutionally valid will: If the Parliament’s intention is clearly stated in the simple language of the enactment, which was passed unanimously, assumed to be the will of 594 MPs and 130 crores of people, and when the principles of transparency and RTI were accepted as Constitutionally compatible with the declared and guaranteed fundamental rights, can any authority, including judiciary, give an interpretation contrary to that will of the people? If given, is that valid?
This is the most agitating question posed time and again. The Precedent vs Express Legislation: Article 141 makes it clear that it is the judiciary that decides what the law is, though Parliament stated it through that ‘expression’. It is an age-old conflict between two prominent Estates in any Constitutional Democracy- Legislature v. Judiciary. The established practice is that the interpretation by the Constitutional court will prevail over the written text. It is based on the jurisprudential principle of precedent. Article 141 is the codification of this rule. T
he sources of law include law made by legislation and precedent, besides ‘custom’. This being the position, the meaning of law however simple or reasonable we might assume, will be subjected to the interpretation given by the constitutional court. The power of review under Article 226 and 32 is the basic structure of the Constitution, and the judgment given while exercising that power, is the law (Article 141). This position is not negotiable. Presumption of correctness of order: There is another interesting principle – presumption of correctness of judgment.
Unless the ‘wrong’ (so assumed) judgment of SC is reversed in review with such declaration, the ‘wrong’ judgment will prevail as right judgment by default. It’s unfortunate that such interpretation remains ‘authentic’. However there is a need for discussion, criticism and pointing out the glaring mistakes both the legislative and judicial declarations that always being the source of the ‘change’. Whether the precedent continues to be the source simultaneously with the specific law is present? The book certainly raised such issues, which are worth debating and taking to their logical end.
One should do enough field work to find an appropriate case to question the inappropriate meaning given to the plain text of RTI Act to guide authorities under RTI Act properly. Perhaps the book is the first step in that process. No reference to conflicting orders: The authors meticulously avoided references to judicial decisions, including the controversial orders which they might have not agreed.
As the book is not studded with the citations and quoted paragraphs or rhetoric of judgments or of Commission’s orders, the book offers a smooth and continuous reading. That way the utility of the book is increased. It is a simple primary on RTI in India, with explanations and some critical insights. The Constitutional conspectus of RTI The RTI Act cannot limit the Freedom of Expression as provided in Article 19(1)(a) of the Constitution.
Section 8 of RTI Act should be compatible with Article 19(2), where grounds for reasonable restrictions listed out. This list is exhaustive, which means new cannot be added. If there is any addition or conflict whether by law passed by Parliament or Judicial precedent, such conflicting provision needs to be challenged. If exemptions on RTI create an additional ground for curbing expression freedom, it cannot sustain. It has to be removed in review.
Similarly right to life and judicial review of legality of detention within 24 hours should not conflict with RTI regarding life related information. The 48 hour limit needs to be restricted to 24 hours to make it compatible with Articles 21 and 22 of the Constitution, as Parliament cannot indirectly restrict this fundamental right through RTI Act without properly amending the Constitution.
And this cannot be amended as it was part of the basic structure of the Constitution. The Authors have deliberately omitted any attempt to enter into such conflicts and avoided the suggestions to change the law also. That is fine. But if required, it has to be done. Constitutional Significance of RTI The authors rightly stated that Freedom of Expression cannot be effectuated fully without RTI. It can be further stretched. The liberty of thought is the source of expression. And thought freedom is useless without access or right to knowledge, which was not directly guaranteed by the Constitution. Just one miniscule part of right to know, i.e., right to information, truncated in myriad forms of expression and exemptions was codified in RTI Act.
That itself is a mini-revolution in this limited sphere of democracy. The RTI is essential for right to life, which indirectly includes in its rubric the right to knowledge. The freedom of speech and expression is wide enough to include right to information. The right to equality under Article 14 imposes a mandate on the state to create equal access to knowledge and information, freely express and lead a living life.
The golden triangle of Fundamental Rights, 14, 19 and 21 cannot be realized without the support of specifically guaranteed statutory right to information. The RTI enables the Article 14, enlivens Article 21 and empowers Article 19. Without any fear of contradiction one can say that the RTI is vital for achieving all fundamental rights. If Article 32 (and Article 226) is a right to remedy, the RTI is tool to reach that remedy.
Tool to achieve new rights Many new rights are emerging in the current international scenario, like right to development, right to service from state, right against corruption and the right to good governance, which are being recognized and demanded, the RTI assumes more significance as an essential requirement to make every citizen a vigilant member of democratic republic.
The theme of participation of citizen in the governance as envisaged by the preamble is well in tune with objectives of participative democracy, to make it vibrant. Undoubtedly eternal vigilance is the price of democracy. Such vigilance is possible with the effective access to information.
Uniformity of Rules The rule making power given to Competent Authority is limited to the contours of RTI law and if the rules are not within that frame, the law will prevail. The conflicting rules ruin the right. The author rightly advised uniformity in fee rules among various public authorities.
Access to information of private bodies Authors raised a very pertinent issue, whether under Section 2(f) the authority has to provide the information which it could access or should it acquire it and provide to seeker. Mr. Satyanand Mishra, former CIC says it should be confined to the scope of particular law that provides the access.
Mr. Toby Mendel, expert on international transparency is of the opinion that if the context demands and the regulatory body have a duty to seek information from private body, it has to do that to give it to information seeker. Whether to confine the access to information already ‘held’ or go beyond it to ‘acquire’ more, thus depends on nature of the information sought, character of private body, the requirement of regulation as prescribed by law etc.
In a privatized democratic economy, the regulation is an essential source of good governance. If regulatory cannot perform its function properly, the citizen shall question. For that, he needs information which private body naturally deny, but the information that private body need to give for the purposes of regulation must be accessible to the people. Accessed information and acquirable information depends on several such issues. It is a dynamic and open question.
Adding illegal pre-fixes in definition of Public authority Can anybody add prefixes or adjectives to expressions used in the definition of ‘public authority’ under RTI Act? The author questioned the introduction of adjectives (prefixes) like ‘complete’ or ‘pervasive’ to the legislative expression ‘control ‘, which provides lot of space for several public bodies to escape from the definition of public authority. Similarly there are diverse comments on ‘substantial finance’.
The discussion on ‘public authority’ is to be taken forward further. Suggestion on ‘right to information’ definition is valid. Suo motu disclosure & No Suo Motu powers The law took care of transparency, but Section 4 is very significant for bringing transparency in the governance, but not totally comprehended and utilized its complete potential by the public authorities.
If implemented, this section can reduce the numbers of RTI to a bare minimum. This section incorporates principles of service, good governance, citizen charters, redressal of grievances, and complaints taking mechanism with time bound resolution etc. But as per the law, Section 4 is not enforceable by the Commission.
The civil society, individual citizens and state have a definite role in getting it realized. Authors’ comments, opinion of Mr Mishra and Mr Toby indicate this need. But the law did not provide any powers to the Commissions to secure the implementation of the provisions transparency under Section 4. It is left to the voluntary wisdom of the executive wings of the Governments, instead of giving suo motu powers to the Commission to check or direct the implementation of the disclosure norms. Demanding Reasons Law mandates the public authority should not demand the reasons for RTI request.
It was right in the sense that it should not be a ground for acceptance of RTI Request. If reasons are required to be given, the public authority will get power to sit in the judgment over reasonability of reasons and retain discretion to reject the RTI requests. There is a practical need to consider whether a background statement or purpose for demand for information should be voluntarily disclosed by the applicant. When most of the information requests are based on either complaints or grievances, it is necessary to know it for effective dispensation of information requests.
More over at three levels, PIO, FAA and second appeal, it is necessary to decide the issue of ’public interest’ wherever required by law. Public interest is a factor to examine the invocation of exceptions, and third party information as prescribed under Sections 8 and 11. A brief statement of background will help the PIO to understand the need and kind of information to be given. Authors and experts clarified that the applicant of BPL status need not pay any kind of fee or additional fee. Exceptions and the denials Limitation on exception clause:
The PIO has to state grounds of rejection, under Section 7. And if the PIO depends on any exception under Section 8, he has a duty to justify. Mere mentioning of exception number is not enough. Under 8(1)(b), the ‘pendency’ of litigation in courts or sub judice is not a defence or exception to deny the information. Only that information disclosure of which is prohibited by law cannot be given. The book has simplified certain important expressions used in exception clauses and explained in lucid manner. It will help the interpreters and users of the law.
Disclosure norm in exceptions: The exception regarding cabinet decisions is not really an exception but an enabling provision explaining the time of disclosure. Section 8(1)(i) (cabinet decisions) cannot be used to deny the information. It imposes a duty on the state to disclose on its own. It supplements the disclosure obligations in Section 4(1)(c) and (d). A reading of two provisions together increases the responsibility to disclose rather than withholding. Once decision is made, entire information regarding that has to be disclosed.
The commentary on Section 8 is comprehensive and useful. Third party information? Section 11 prescribes a procedure and not an exemption. What is the meaning of information relates to or supplied by third party? This is an important question that demands proper explanation. Most of the times the PIOs are rejecting information as ‘third party’ information, without following the procedure prescribed. Secondly, the PIOs just deny the information the moment the objection is registered by ‘third party’. This needs to be addressed exhaustively.
The authors made best attempt. It still falls short. Alternative scope of access If any other public authority has different access mechanism under different law or rules, it is not affected by this Act as long as there is no conflict. Then the problem rightly noticed by the authors is that the public authority denies the RTI and advice him to come under alternative route.
The citizen has a choice, not the public authority. If information sought under RTI Act could be given under that law, and also under other law, it has to be disclosed as per RTI Act. Existence of other procedure or rules or law providing access is not a defence to deny under RTI. Constructive suggestions of the Authors The authors need to be appreciated for accommodating the views of other experts, without expressing any agreement or disagreement. That is in tune with the democratic norms and constitutional righteousness. The authors deserve all appreciation, as they sacrificed their copyright or consequential benefits in true spirit of transparency and practice of openness.
The book is available online with easy accessibility. It certainly reaches more than the print copy of the book could and sparks the thinking among various stake holders. The print copy, which is released recently, also will kick up discussion effectively. The Authors suggested National Colloquium to discuss and debate the RTI Act and its implementation, which was ranked 66th, though the draft was rated as third best in the world. None can disagree with this suggestion. It is the need at this 11th year of working of RTI Act. (11th November 2016)
Read more at: http://www.livelaw.in/book-review-rti-act-authentic-interpretation-statute-shailesh-gandhi-pralhad-kacheri/