CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office) Old JNU Campus,
New Delhi – 110067 Tel: +91-11-26161796
Decision No. CIC/SM/A/2011/000237/SG/12351
Appeal No. CIC/SM/A/2011/000237/SG
Relevant Facts emerging from the Appeal:
Appellant: Mr. R. S. Misra, S- 93, New Palam Vihar, Phase- I, Gurgaon- 122017
Respondent: Mrs. Smita Vats Sharma, CPIO, Supreme Court of India, New Delhi
RTI application filed on: 20/04/2010
PIO replied on: 07/05/2010
First Appeal filed on: 23/05/2010
First Appellate Authority Order of: 18/06/2010
Second Appeal filed before Commission: 05/02/2011
Information Sought:
Appellant has sought information on 9 queries pertaining to inter alia action taken/status report on certain letters, reasons for judicial decisions, etc.
Information provided by Public Information Officer (PIO):
Queries 1 to 7: PIO mentioned that Appellant was represented by Ms. Rachna Gupta, Advocate in Petition for Special Leave to Appeal (Civil) Nos. 8219-8220 of 2010. Inspection can be done and information/certified copies of judicial records/judgments of Supreme Court of India (“Supreme Court”) can be obtained by moving an application to Registrar (Copying), Supreme Court under Order XII, Supreme Court Rules, 1966 ( “SC Rules”) on payment of prescribed fees and charges.
Query 9: Under RTI Act, it is beyond scope & jurisdiction of PIO to interpret law, judgments of Supreme Court or of any other Court, opine, comment or advise on matters. Information sought was not covered U/s 2(f) of RTI
Grounds for First Appeal:
Unsatisfactory reply provided by the PIO.
Order of the First Appellate Authority (FAA):
FAA observed that Appellant had addressed certain letters to judges in relation to his SLP No. 8219- 8220/ 2010 and sought information about action taken on same. Appellant was represented by a counsel in said case. Inspection of documents & information relating to judicial records can be done only u/o XII, SC Rules. Under query 9, Appellant had sought opinion of PIO, does not fall within Section 2(f) of RTI. Hence, Appeal dismiss.
Ground for Second Appeal:
Information was wrongly denied to the Appellant.
Relevant Facts emerging during Hearing held on May 6, 2011:
The following were present:
Appellant: Mr. R. S. Misra;
Respondent: Mrs. Smita Vats Sharma, CPIO & Additional Registrar and Ms. Priyanka S. Telang, Advocate.
Appellant stated that he was seeking information about action taken on/status report of his letters, which must be provided to him as per provisions of RTI Act. The Respondent did not produce any written submissions before Commission. The Respondent relied on certain decisions (and judgments quoted therein) of Commission in Manish Kumar Khanna v. Supreme Court of India CIC/WB/A/2006/00940 dated 07/12/2007, Rakesh Kumar Gupta v. Supreme Court of India CIC/WB/A/2009/000553 dated 05/05/2009 and R. K. Pandey v. Supreme Court of India CIC/WB/A/2008/00777 dated 24/04/2008 and CIC/WB/A/2009/00150 dated 20/02/2009. The main contention of Respondent was that as per Section 22 of RTI Act, RTI Act shall have an overriding effect only when any other law was inconsistent with the provisions of RTI Act. In this regard, Respondent directed attention of Commission to specific portions of the decisions mentioned above (which have been quoted below).
Further, Commission enquired of Respondent whether she would like to furnish arguments in addition to decisions cited above. The Respondent stated that she did not wish to furnish any further arguments and submitted that Supreme Court already had a specific provision to furnish information under Order XII of SC Rules and therefore, information relating to judicial matters may be provided only under said provision. The Respondent further argued that since then Chief Information Commissioner had upheld this contention in decisions cited above, their arguments before this Commission were already covered under said decisions.
The Commission enquired of Respondent that where multiple routes were available to a citizen for obtaining information, was the citizen required to seek information only in accordance with SC Rules. The Respondent stated that there were a number of queries under RTI applications, which were answered by Supreme Court. However, to facilitate access to records pertaining to judicial proceedings/matters, applicants were apprised of SC Rules, which laid down the procedure for obtaining the information in this regard.
The relevant portions marked by the Respondent in the decision of Manish Kumar Khanna v. Supreme
Court of India CIC/WB/A/2006/00940 dated 07/12/2007 were:
“… The non-obstante clause of the Right to Information Act does not, therefore, mean an implied repeal of the Supreme Court Rules and orders framed thereunder, but only an override of RTI in case of ‘inconsistency’.
In this context, the following observations of the Hon’ble Apex Court in R.S. Raghunath vs. State of Karnataka — AIR 1992 SC 81 are pertinent:
“The general Rule to be followed in case of conflict between the two statutes is that the latter abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied.
(i) The two are inconsistent with each other.
(ii) There is some express reference in the later to the earlier enactment. If either of these two conditions is fulfilled, the later law, even though general, would prevail.”
… This issue came again for consideration before the Hon’ble Apex Court in Chandra Prakash Tiwari vs. Shakuntala Shukla — A1R2002 SC 2322 and the Hon’ble Supreme Court quoted with approval the Broom’s Legal Maxim in reference to two Latin Maxims in the following words:
“It is then, an elementary Rule that an earlier Act must give place to a later, if the two cannot be reconciled - lex posterior derogat priori - non est novum ut priores lages ad posteriores trahantur (Emphasis supplied) - and one Act may repeal another by express words or by implication; for it is enough if there be words which by necessary implication repeal it. But repeal by implication is never to be favoured,and must not be imputed to the legislature without necessity, or strong reason, to be shown by the party imputing it. It is only effected where the provisions of the later enactment are so inconsistent with, or repugnant to, those of the earlier that the two cannot stand together unless the two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time a repeal cannot be implied; and special Acts are not repealed by general Acts unless there be some express reference to the previous legislation, or a necessary inconsistency in the two Acts standing together, which prevents the maxim generalia specialibus non derogant (Emphasis supplied) from being applied. For where there are general words in a later Act capable of reasonable application without being extended to subjects specially dealt with by earlier legislation, then, in the absence of an indication of a particular intention to that effect, the presumption is that the general words were not intended to repeal the earlier and special legislation, to take away a particular privilege of a particular class of persons.”
The differences between the Right to Information Act and the procedure as prescribed by the Supreme Court for conduct of its own practice and procedure have to be looked into from another angle also as to whether there is a direct inconsistency between the two. In this context, it may be mentioned that neither provision prohibits or forbids dissemination of information or grant of copies of records. The difference is only insofar as practice or payments of fees etc. is concerned. There is, therefore, no inherent inconsistency between the two provisions.
Over and above, the Supreme Court Rules are particular or special law dealing with a particular phase of the subject covered by the Right to Information Act and, therefore, consistency is possible. It is a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated by a posterior law expressed in general terms. The said principle was accepted by the Hon’ble Supreme Court and expressed by Justice Mudholkar in the following words:
“A general statute applies to all persons and localities within its jurisdiction and scope as distinguished from a special one which in its operation is confined to a particular locality and, therefore, where it is doubtful whether the special statute was intended to be repealed by the general statute the court should try to give effect to both the enactments as far as possible.” ”
Based on the same, the then Chief Information concluded:
“U/s 22 of the RTI Act the provisions of the RTI Act have effect notwithstanding anything inconsistent therewith contained in any other law for time being enforced or instrument having effect by virtue in law other than this Act. However, since both the Act and Order XII of the Supreme Court Rules provide for disclosure of information of the kind sought in the present case we find that there is nothing inconsistent in the rules. It is only that Supreme Court Rules 1966 through Order XII, Rule 2 prescribe procedure for obtaining the information. This procedure together with fees is in the province of the prescribed authority u/s 28 of the RTI Act. This issue is disposed of accordingly.”
The Respondent also relied on certain portions of the decision in R. K. Pandey v. Supreme Court of India CIC/WB/A/2008/00777 dated 24/04/2008 and CIC/WB/A/2009/00150 dated 20/02/2009, which was marked as 1 and 2 by the Respondent, and is reproduced as follows:
“…We have, however, indeed found that Order No. XII of the Supreme Court Rules 1965 is not inconsistent with RTI Act. Section 22 of RTI Act is overriding only in that it requires that provisions of RTI Act “shall have the effect notwithstanding anythinginconsistent therewith contained in any other law 1 for the time being in force”, including Official Secret Act, 1923.
Therefore, any law or Rule not inconsistent with RTI Act is a law or rule which must stand notwithstanding coming into force RTI Act. Appellant Shri R.K. Pandey expressed apprehension that if this is case every department will have its own rules and laws and the majesty of the RTI Act will be totally eroded. This, of course, is not so because it is not every public authority which has a right to frame rules. U/s 27 and 28 of the RTI Act this authority is only given either to appropriate Government or to the competent authority’. The competent authority is clearly defined in Section 2 (e) of RTI Act.”
The Commission reserved the order during the hearing held on 06/05/2011.
Decision announced on May 11, 2011:
The Appellant has sought information about the action taken on/ status report of certain letters. In relation to queries 1 to 7, PIO replied that inspection may be done and information/certified copies of the judicial records /judgments of the Supreme Court may be obtained by moving an application under Order XII of the SC Rules on payment of the prescribed fees. As regards query 9, PIO stated that the information sought did not come within the ambit of Section 2(f) of RTI Act. The information so provided by the PIO was accepted by the FAA. Dissatisfied with the same, Appellant filed a Second Appeal before the Commission. At outset, the Commission would like to state that it will not delve into the merits of the information sought by Appellant. Further, Commission is satisfied with the reply of the PIO provided in relation to query 9.
Based on contentions of Respondent and decisions cited, main issue which arises for determination before Commission is where there were methods of obtaining information from a public authority in existence before RTI Act, can a citizen insist on obtaining information under RTI Act.
RTI is a fundamental right of citizens. This has been clearly recognised by Supreme Court in several decisions and subsequently, codified by Parliament in 2005. RTI Act was enacted with spirit of ensuring transparency and access to information giving citizens RTI. It lays down substantive RTI of citizens and practical mechanism to enforce said right. Section 3 of RTI Act lays down that subject to provisions of RTI Act, all citizens shall have RTI. RTI Act is a crisp legislation comprising of 31 Sections, which confer upon citizens, RTI accessible under RTI Act, which is held by or under control of a public authority. Scheme of RTI Act stipulates inter alia that information sought shall be provided within prescribed period, formulation of a proper appellate mechanism and invoking of stringent penalty where PIO fails to provide information within mandated period without reasonable cause. RTI Act is premised on disclosure being norm, and refusal, exception. It is legally established that information requested for under RTI Act may be exempted from disclosure in accordance with Sections 8 & 9 only and no other exemptions can be claimed while rejecting a demand for disclosure.
Section 22 of RTI Act expressly provides that provisions of RTI Act shall have effect notwith- standing anything inconsistent therewith contained in Official Secrets Act, 1923, and any other law for time being in force or in any instrument having effect by virtue of any law other than RTI Act. In other words, where there is any inconsistency in a law as regards furnishing of information, such law shall be superseded by RTI. Insertion of a non- obstante clause in Section 22 of RTI Act was a conscious choice of Parliament to safeguard citizens’ fundamental RTI from convoluted interpretations of other laws adopted by public authorities to deny information. Presence of Section 22 of RTI Act simplifies process of implementing RTI both for citizens as well PIO; citizens may seek to enforce their fundamental right to information by simply invoking provisions of RTI
Given the above, two scenarios may be envisaged:
1. An earlier law/ rule whose provisions pertain to furnishing of information and is consistent with the RTI Act: Since there is no inconsistency between the law/ rule and the provisions of the RTI Act, the citizen is at liberty to choose whether she will seek information in accordance with the said law/ rule or under RTI Act. If PIO has received a request for information under RTI Act, the information shall be provided to citizen as per the provisions of RTI Act and any denial of the same must be in accordance with Sec 8 & 9 of RTI Act only; and
2. An earlier law/rule whose provisions pertain to furnishing of information but is inconsistent with RTI: Where there is inconsistency between law/rule & RTI Act in terms of access to information, then Section 22 of RTI Act shall override said law/rule and PIO would be required to furnish information as per RTI Act only
The Commission has perused decisions cited by Respondent and noted that then C.I. Commissioner has delved into semantics of interpretations of statutes. This Commission agrees with observations and judgments quoted therein which discuss overriding effect of a later general law over an earlier special law. Based on these observations, this Commission agrees that RTI Act does not abrogate or repeal SC Rules. This Commission also agrees with observations of Mudholkar J., that “where it is doubtful whether the special statute was intended to be repealed by the general statute the court should try to give effect to both enactments as far as possible”.
SC Rules as well as RTI Act coexist and therefore, it is for citizen to determine which route she would prefer for obtaining the information. The right to information available to the citizens under RTI Act cannot be denied where such citizen chooses to exercise such right, as has been done by PIO in the instant case. The Commission would like to highlight that just as SC Rules put in place by Supreme Court are not abrogated, RTI Act passed by the Parliament also cannot be suspended. If the PIO has received a request for information under the RTI Act, the information shall be provided to the applicant as per the provisions of RTI Act and any denial of the same must be in accordance with Sections 8 and 9 of the RTI Act only. In view of the same, this Commission respectfully differs with decisions of then C.I. Commissioner when he concluded that since SC Rules were not inconsistent with RTI Act, the citizen shall be required to obtain information under Order XII of SC Rules.
In instant case, PIO had stated that there was a separate procedure under Order XII of the SC Rules for obtaining information and that Appellant could obtain same only by following mechanism mentioned in Order XII of SC Rules. In other words, it appears that the Appellant would not be able to enforce right to information available to her under RTI Act and have to necessarily follow procedure mentioned in SC Rules. Moreover, even where Parliament has guaranteed every citizen the right to information under RTI Act, PIO, in instant case, has abrogated the same by directing Appellant to obtain information in accordance with Order XII of SC Rules.
Commission has noted that PIO has rejected request for information under RTI Act without taking recourse to Sections 8 and 9 of RTI Act, which is clearly against statutory mandate. If reply provided by PIO is to be accepted, it would negate citizen’s right to information under RTI Act and frustrate implementation of latter. RTI Act is a reflection of will of citizens of India that has been codified by Parliament, and accepting reply of PIO furnished in instant case would render RTI Act redundant. Merely because Order XII of SC Rules provide for a mechanism by which certain information may be obtained by applicant, does not mean that citizen cannot exercise her right to obtain same information by taking recourse to RTI Act (subject always to provisions of Sections 8 & 9 of RTI Act).
In view of aforesaid arguments, this Commission holds that it is citizen’s prerogative to decide under which mechanism i.e. either Order XII of SC Rules or RTI Act, she would like to obtain information. If PIO has received a request for information under RTI Act, information shall be provided to applicant as per provisions of RTI Act and any denial of same must be in accordance with Sections 8 and 9 of RTI Act only; applicant cannot be forced to obtain information as per Order XII of SC Rules.
At this juncture, Commission would like to mention certain decisions of Supreme Court in CIT v. A. Raman & Co. [1968] 67 ITR 11 (SC), which was upheld in CIT v. Calcutta Discount Co. Ltd. [1973] 91 ITR 8 (SC) and subsequently in UOI v. Azadi Bachao Andolan [2003] 263 ITR 706 (SC), where Shah J., observed as follows:
“… Avoiding of tax liability by so arranging commercial affairs that charge of tax isdistributed is not prohibited. A tax payer may resort to a device to divert income before it accrues or arises to him. Effectiveness of device depends not upon considerations of morality, but on operation of Income Tax Act. Legislative injunction in taxing statutes may not, except on peril of penalty, be violated, but it may be lawfully circumvented...” (Emphasis Added)
Therefore, even when the State may lose revenue, the Supreme Court has ruled that an individual tax payer has the liberty to arrange her commercial affairs in order to reduce her tax liability, so long as such arrangement is within the operation of tax legislation(s). Drawing an analogy, it certainly stands to reason that a citizen should be able to decide on the method most convenient and expedient by which she would obtain information.
Having laid down above, this Commission would now additionally examine whether there is any inconsistency between the RTI Act and Order XII of the SC Rules, and if so, whether Section 22 of RTI Act shall override provisions of SC Rules. As discussed above, Section 22 of RTI Act expressly provides that provisions of RTI Act shall have effect notwithstanding anything inconsistent therewith contained in Official Secrets Act, 1923, and any other law for time being in force or in any instrument having effect by virtue of any law other than RTI Act. Section 22 of RTI Act, in no uncertain terms, lays down that RTI Act shall override anything inconsistent contained in any other law. Order XII of SC Rules provides inter alia:
“1. Subject to the provisions of these rules, a party to any cause, appeal or matter who has appeared shall be allowed to search, inspect or get copies of all pleadings and other documents or records in the case, on payment of the prescribed fees and charges.
2. The Court, on the application of a person who is not a party to the case, appeal or matter, may on good cause shown, allow such person such search or inspection or to obtain such copies as is or are mentioned in the last preceding rule, on payment of the prescribed fees and charges.” (Emphasis added)
On a plain reading of Rules 1 & 2, it appears that citizens shall have right to access information pertaining only to judicial matters i.e. documents/records in a case. Rule 1 allows only a party to any cause, appeal or matter who has appeared to inspect and/or obtain copies of information pertaining to judicial matters. However, Rule 2 allows a person who is not a party to case, appeal or matter to inspect and/ or obtain information relating to judicial matters where ‘good cause’ is shown. In other words, where a person is not a party to a case, appeal or matter, she would be required to demonstrate ‘good cause’ before Court before being allowed to inspect and/or obtain copies of information sought.
As per Section 6(2) of RTI Act, an applicant making a request for information under RTI Act shall not give any reasons for requesting information. U/r 2, in order to determine what is ‘good cause’, it is necessary to enquire into purpose/reasons for which an applicant is seeking information. This is clearly violative of statutory mandate of Section 6(2) of RTI Act. Moreover, from use of word “may” in Rule 2, there appears to be a certain discretion conferred upon Court to determine what amounts to ‘good cause’, and even where ‘good cause’ has been shown, whether such information shall be provided or not. This is a clear embargo on enforcement of fundamental right to information of citizens. Citizens would have to justify any request for information by demonstrating ‘good cause’ U/ r 2 and ultimate decision whether information should be provided or not would lie with Court. Rule 2 appears to create an exemption in providing information, which is not envisaged in Sec 8 & 9 of RTI Act. At this juncture, it would not be out of place to mention that SC Rules neither provide for a specific time within which information shall be furnished, any appeal procedure, nor any penalty provisions where information is not provided.
Therefore, this Commission respectfully disagrees with observations of then C. I. Commissioner and holds that Rule 2, Order XII of SC Rules appears to impose a restriction on access to information held by or under control of a public authority, which is prima facie inconsistent with RTI Act. Therefore, in accordance with Section 22 of RTI Act, provisions of RTI Act shall override SC Rules.
Further, as per reply provided by PIO, information can be accessed by Appellant on Supreme Court’s website. As per Section 7(9) of RTI Act, information shall ordinarily be provided in form in which it is sought unless it would disproportionately divert the resources of public authority or would be detrimental to safety or preservation of record in question. RTI Act mandates that information shall ordinarily be provided in form in which it is sought or requested for. It may not be out of place to mention that more than 90% of our country’s population does not have access to computers and even where they do, may not understand how to access same. Therefore, there is a duty cast upon PIO to ensure that information sought by an applicant is provided in hard copy or in manner requested by applicant. Where no specific mention is made as regards manner in which information must be furnished, it may be presumed that citizen is seeking information in the form of hard copy. Moreover, even where PIO has indicated that information may be accessed from website, complete link/web address at which the requisite information is available, must be furnished.
Before parting with instant matter, this Commission has noted that Supreme Court, on various occasions, has ruled that it is incumbent on public sector institutions to be model employers following all laws in letter and spirit. This Commission humbly submits that Supreme Court should become a role model in implementation of provisions of RTI, 2005 in its true letter and spirit and inspire all public authorities to follow its lead in transparency. This would certainly enable better delivery of citizen’s fundamental right to information.
In view of foregoing arguments, this Commission respectfully disagrees with decision of then C. I. Commissioner that PIO, SC may choose to deny information sought under RTI Act and ask an applicant to apply for information under Order XII of SC Rules.
This Bench further rules that all citizens have right to access information U/s 3 of RTI Act and PIOs shall provide information sought to citizens, subject always to provisions of RTI Act only.
Where there are methods of giving information by any public authority which were in existence before advent of RTI Act, citizen may insist on invoking provisions of RTI Act to obtain information. It is citizen’s prerogative to decide under which mechanism i.e. under method prescribed by public authority or RTI Act, she would like to obtain information.
The Appeal is allowed. The PIO is directed to provide the complete information as available on
record in relation to queries 1 to 7 to the Appellant before June 5, 2011.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi
Information Commissioner
May 11, 2011
(In any correspondence on this decision, mention the complete decision number.)(SRG)
Club Building (Near Post Office) Old JNU Campus,
New Delhi – 110067 Tel: +91-11-26161796
Decision No. CIC/SM/A/2011/000237/SG/12351
Appeal No. CIC/SM/A/2011/000237/SG
Relevant Facts emerging from the Appeal:
Appellant: Mr. R. S. Misra, S- 93, New Palam Vihar, Phase- I, Gurgaon- 122017
Respondent: Mrs. Smita Vats Sharma, CPIO, Supreme Court of India, New Delhi
RTI application filed on: 20/04/2010
PIO replied on: 07/05/2010
First Appeal filed on: 23/05/2010
First Appellate Authority Order of: 18/06/2010
Second Appeal filed before Commission: 05/02/2011
Information Sought:
Appellant has sought information on 9 queries pertaining to inter alia action taken/status report on certain letters, reasons for judicial decisions, etc.
Information provided by Public Information Officer (PIO):
Queries 1 to 7: PIO mentioned that Appellant was represented by Ms. Rachna Gupta, Advocate in Petition for Special Leave to Appeal (Civil) Nos. 8219-8220 of 2010. Inspection can be done and information/certified copies of judicial records/judgments of Supreme Court of India (“Supreme Court”) can be obtained by moving an application to Registrar (Copying), Supreme Court under Order XII, Supreme Court Rules, 1966 ( “SC Rules”) on payment of prescribed fees and charges.
Query 9: Under RTI Act, it is beyond scope & jurisdiction of PIO to interpret law, judgments of Supreme Court or of any other Court, opine, comment or advise on matters. Information sought was not covered U/s 2(f) of RTI
Grounds for First Appeal:
Unsatisfactory reply provided by the PIO.
Order of the First Appellate Authority (FAA):
FAA observed that Appellant had addressed certain letters to judges in relation to his SLP No. 8219- 8220/ 2010 and sought information about action taken on same. Appellant was represented by a counsel in said case. Inspection of documents & information relating to judicial records can be done only u/o XII, SC Rules. Under query 9, Appellant had sought opinion of PIO, does not fall within Section 2(f) of RTI. Hence, Appeal dismiss.
Ground for Second Appeal:
Information was wrongly denied to the Appellant.
Relevant Facts emerging during Hearing held on May 6, 2011:
The following were present:
Appellant: Mr. R. S. Misra;
Respondent: Mrs. Smita Vats Sharma, CPIO & Additional Registrar and Ms. Priyanka S. Telang, Advocate.
Appellant stated that he was seeking information about action taken on/status report of his letters, which must be provided to him as per provisions of RTI Act. The Respondent did not produce any written submissions before Commission. The Respondent relied on certain decisions (and judgments quoted therein) of Commission in Manish Kumar Khanna v. Supreme Court of India CIC/WB/A/2006/00940 dated 07/12/2007, Rakesh Kumar Gupta v. Supreme Court of India CIC/WB/A/2009/000553 dated 05/05/2009 and R. K. Pandey v. Supreme Court of India CIC/WB/A/2008/00777 dated 24/04/2008 and CIC/WB/A/2009/00150 dated 20/02/2009. The main contention of Respondent was that as per Section 22 of RTI Act, RTI Act shall have an overriding effect only when any other law was inconsistent with the provisions of RTI Act. In this regard, Respondent directed attention of Commission to specific portions of the decisions mentioned above (which have been quoted below).
Further, Commission enquired of Respondent whether she would like to furnish arguments in addition to decisions cited above. The Respondent stated that she did not wish to furnish any further arguments and submitted that Supreme Court already had a specific provision to furnish information under Order XII of SC Rules and therefore, information relating to judicial matters may be provided only under said provision. The Respondent further argued that since then Chief Information Commissioner had upheld this contention in decisions cited above, their arguments before this Commission were already covered under said decisions.
The Commission enquired of Respondent that where multiple routes were available to a citizen for obtaining information, was the citizen required to seek information only in accordance with SC Rules. The Respondent stated that there were a number of queries under RTI applications, which were answered by Supreme Court. However, to facilitate access to records pertaining to judicial proceedings/matters, applicants were apprised of SC Rules, which laid down the procedure for obtaining the information in this regard.
The relevant portions marked by the Respondent in the decision of Manish Kumar Khanna v. Supreme
Court of India CIC/WB/A/2006/00940 dated 07/12/2007 were:
“… The non-obstante clause of the Right to Information Act does not, therefore, mean an implied repeal of the Supreme Court Rules and orders framed thereunder, but only an override of RTI in case of ‘inconsistency’.
In this context, the following observations of the Hon’ble Apex Court in R.S. Raghunath vs. State of Karnataka — AIR 1992 SC 81 are pertinent:
“The general Rule to be followed in case of conflict between the two statutes is that the latter abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied.
(i) The two are inconsistent with each other.
(ii) There is some express reference in the later to the earlier enactment. If either of these two conditions is fulfilled, the later law, even though general, would prevail.”
… This issue came again for consideration before the Hon’ble Apex Court in Chandra Prakash Tiwari vs. Shakuntala Shukla — A1R2002 SC 2322 and the Hon’ble Supreme Court quoted with approval the Broom’s Legal Maxim in reference to two Latin Maxims in the following words:
“It is then, an elementary Rule that an earlier Act must give place to a later, if the two cannot be reconciled - lex posterior derogat priori - non est novum ut priores lages ad posteriores trahantur (Emphasis supplied) - and one Act may repeal another by express words or by implication; for it is enough if there be words which by necessary implication repeal it. But repeal by implication is never to be favoured,and must not be imputed to the legislature without necessity, or strong reason, to be shown by the party imputing it. It is only effected where the provisions of the later enactment are so inconsistent with, or repugnant to, those of the earlier that the two cannot stand together unless the two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time a repeal cannot be implied; and special Acts are not repealed by general Acts unless there be some express reference to the previous legislation, or a necessary inconsistency in the two Acts standing together, which prevents the maxim generalia specialibus non derogant (Emphasis supplied) from being applied. For where there are general words in a later Act capable of reasonable application without being extended to subjects specially dealt with by earlier legislation, then, in the absence of an indication of a particular intention to that effect, the presumption is that the general words were not intended to repeal the earlier and special legislation, to take away a particular privilege of a particular class of persons.”
The differences between the Right to Information Act and the procedure as prescribed by the Supreme Court for conduct of its own practice and procedure have to be looked into from another angle also as to whether there is a direct inconsistency between the two. In this context, it may be mentioned that neither provision prohibits or forbids dissemination of information or grant of copies of records. The difference is only insofar as practice or payments of fees etc. is concerned. There is, therefore, no inherent inconsistency between the two provisions.
Over and above, the Supreme Court Rules are particular or special law dealing with a particular phase of the subject covered by the Right to Information Act and, therefore, consistency is possible. It is a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated by a posterior law expressed in general terms. The said principle was accepted by the Hon’ble Supreme Court and expressed by Justice Mudholkar in the following words:
“A general statute applies to all persons and localities within its jurisdiction and scope as distinguished from a special one which in its operation is confined to a particular locality and, therefore, where it is doubtful whether the special statute was intended to be repealed by the general statute the court should try to give effect to both the enactments as far as possible.” ”
Based on the same, the then Chief Information concluded:
“U/s 22 of the RTI Act the provisions of the RTI Act have effect notwithstanding anything inconsistent therewith contained in any other law for time being enforced or instrument having effect by virtue in law other than this Act. However, since both the Act and Order XII of the Supreme Court Rules provide for disclosure of information of the kind sought in the present case we find that there is nothing inconsistent in the rules. It is only that Supreme Court Rules 1966 through Order XII, Rule 2 prescribe procedure for obtaining the information. This procedure together with fees is in the province of the prescribed authority u/s 28 of the RTI Act. This issue is disposed of accordingly.”
The Respondent also relied on certain portions of the decision in R. K. Pandey v. Supreme Court of India CIC/WB/A/2008/00777 dated 24/04/2008 and CIC/WB/A/2009/00150 dated 20/02/2009, which was marked as 1 and 2 by the Respondent, and is reproduced as follows:
“…We have, however, indeed found that Order No. XII of the Supreme Court Rules 1965 is not inconsistent with RTI Act. Section 22 of RTI Act is overriding only in that it requires that provisions of RTI Act “shall have the effect notwithstanding anythinginconsistent therewith contained in any other law 1 for the time being in force”, including Official Secret Act, 1923.
Therefore, any law or Rule not inconsistent with RTI Act is a law or rule which must stand notwithstanding coming into force RTI Act. Appellant Shri R.K. Pandey expressed apprehension that if this is case every department will have its own rules and laws and the majesty of the RTI Act will be totally eroded. This, of course, is not so because it is not every public authority which has a right to frame rules. U/s 27 and 28 of the RTI Act this authority is only given either to appropriate Government or to the competent authority’. The competent authority is clearly defined in Section 2 (e) of RTI Act.”
The Commission reserved the order during the hearing held on 06/05/2011.
Decision announced on May 11, 2011:
The Appellant has sought information about the action taken on/ status report of certain letters. In relation to queries 1 to 7, PIO replied that inspection may be done and information/certified copies of the judicial records /judgments of the Supreme Court may be obtained by moving an application under Order XII of the SC Rules on payment of the prescribed fees. As regards query 9, PIO stated that the information sought did not come within the ambit of Section 2(f) of RTI Act. The information so provided by the PIO was accepted by the FAA. Dissatisfied with the same, Appellant filed a Second Appeal before the Commission. At outset, the Commission would like to state that it will not delve into the merits of the information sought by Appellant. Further, Commission is satisfied with the reply of the PIO provided in relation to query 9.
Based on contentions of Respondent and decisions cited, main issue which arises for determination before Commission is where there were methods of obtaining information from a public authority in existence before RTI Act, can a citizen insist on obtaining information under RTI Act.
RTI is a fundamental right of citizens. This has been clearly recognised by Supreme Court in several decisions and subsequently, codified by Parliament in 2005. RTI Act was enacted with spirit of ensuring transparency and access to information giving citizens RTI. It lays down substantive RTI of citizens and practical mechanism to enforce said right. Section 3 of RTI Act lays down that subject to provisions of RTI Act, all citizens shall have RTI. RTI Act is a crisp legislation comprising of 31 Sections, which confer upon citizens, RTI accessible under RTI Act, which is held by or under control of a public authority. Scheme of RTI Act stipulates inter alia that information sought shall be provided within prescribed period, formulation of a proper appellate mechanism and invoking of stringent penalty where PIO fails to provide information within mandated period without reasonable cause. RTI Act is premised on disclosure being norm, and refusal, exception. It is legally established that information requested for under RTI Act may be exempted from disclosure in accordance with Sections 8 & 9 only and no other exemptions can be claimed while rejecting a demand for disclosure.
Section 22 of RTI Act expressly provides that provisions of RTI Act shall have effect notwith- standing anything inconsistent therewith contained in Official Secrets Act, 1923, and any other law for time being in force or in any instrument having effect by virtue of any law other than RTI Act. In other words, where there is any inconsistency in a law as regards furnishing of information, such law shall be superseded by RTI. Insertion of a non- obstante clause in Section 22 of RTI Act was a conscious choice of Parliament to safeguard citizens’ fundamental RTI from convoluted interpretations of other laws adopted by public authorities to deny information. Presence of Section 22 of RTI Act simplifies process of implementing RTI both for citizens as well PIO; citizens may seek to enforce their fundamental right to information by simply invoking provisions of RTI
Given the above, two scenarios may be envisaged:
1. An earlier law/ rule whose provisions pertain to furnishing of information and is consistent with the RTI Act: Since there is no inconsistency between the law/ rule and the provisions of the RTI Act, the citizen is at liberty to choose whether she will seek information in accordance with the said law/ rule or under RTI Act. If PIO has received a request for information under RTI Act, the information shall be provided to citizen as per the provisions of RTI Act and any denial of the same must be in accordance with Sec 8 & 9 of RTI Act only; and
2. An earlier law/rule whose provisions pertain to furnishing of information but is inconsistent with RTI: Where there is inconsistency between law/rule & RTI Act in terms of access to information, then Section 22 of RTI Act shall override said law/rule and PIO would be required to furnish information as per RTI Act only
The Commission has perused decisions cited by Respondent and noted that then C.I. Commissioner has delved into semantics of interpretations of statutes. This Commission agrees with observations and judgments quoted therein which discuss overriding effect of a later general law over an earlier special law. Based on these observations, this Commission agrees that RTI Act does not abrogate or repeal SC Rules. This Commission also agrees with observations of Mudholkar J., that “where it is doubtful whether the special statute was intended to be repealed by the general statute the court should try to give effect to both enactments as far as possible”.
SC Rules as well as RTI Act coexist and therefore, it is for citizen to determine which route she would prefer for obtaining the information. The right to information available to the citizens under RTI Act cannot be denied where such citizen chooses to exercise such right, as has been done by PIO in the instant case. The Commission would like to highlight that just as SC Rules put in place by Supreme Court are not abrogated, RTI Act passed by the Parliament also cannot be suspended. If the PIO has received a request for information under the RTI Act, the information shall be provided to the applicant as per the provisions of RTI Act and any denial of the same must be in accordance with Sections 8 and 9 of the RTI Act only. In view of the same, this Commission respectfully differs with decisions of then C.I. Commissioner when he concluded that since SC Rules were not inconsistent with RTI Act, the citizen shall be required to obtain information under Order XII of SC Rules.
In instant case, PIO had stated that there was a separate procedure under Order XII of the SC Rules for obtaining information and that Appellant could obtain same only by following mechanism mentioned in Order XII of SC Rules. In other words, it appears that the Appellant would not be able to enforce right to information available to her under RTI Act and have to necessarily follow procedure mentioned in SC Rules. Moreover, even where Parliament has guaranteed every citizen the right to information under RTI Act, PIO, in instant case, has abrogated the same by directing Appellant to obtain information in accordance with Order XII of SC Rules.
Commission has noted that PIO has rejected request for information under RTI Act without taking recourse to Sections 8 and 9 of RTI Act, which is clearly against statutory mandate. If reply provided by PIO is to be accepted, it would negate citizen’s right to information under RTI Act and frustrate implementation of latter. RTI Act is a reflection of will of citizens of India that has been codified by Parliament, and accepting reply of PIO furnished in instant case would render RTI Act redundant. Merely because Order XII of SC Rules provide for a mechanism by which certain information may be obtained by applicant, does not mean that citizen cannot exercise her right to obtain same information by taking recourse to RTI Act (subject always to provisions of Sections 8 & 9 of RTI Act).
In view of aforesaid arguments, this Commission holds that it is citizen’s prerogative to decide under which mechanism i.e. either Order XII of SC Rules or RTI Act, she would like to obtain information. If PIO has received a request for information under RTI Act, information shall be provided to applicant as per provisions of RTI Act and any denial of same must be in accordance with Sections 8 and 9 of RTI Act only; applicant cannot be forced to obtain information as per Order XII of SC Rules.
At this juncture, Commission would like to mention certain decisions of Supreme Court in CIT v. A. Raman & Co. [1968] 67 ITR 11 (SC), which was upheld in CIT v. Calcutta Discount Co. Ltd. [1973] 91 ITR 8 (SC) and subsequently in UOI v. Azadi Bachao Andolan [2003] 263 ITR 706 (SC), where Shah J., observed as follows:
“… Avoiding of tax liability by so arranging commercial affairs that charge of tax isdistributed is not prohibited. A tax payer may resort to a device to divert income before it accrues or arises to him. Effectiveness of device depends not upon considerations of morality, but on operation of Income Tax Act. Legislative injunction in taxing statutes may not, except on peril of penalty, be violated, but it may be lawfully circumvented...” (Emphasis Added)
Therefore, even when the State may lose revenue, the Supreme Court has ruled that an individual tax payer has the liberty to arrange her commercial affairs in order to reduce her tax liability, so long as such arrangement is within the operation of tax legislation(s). Drawing an analogy, it certainly stands to reason that a citizen should be able to decide on the method most convenient and expedient by which she would obtain information.
Having laid down above, this Commission would now additionally examine whether there is any inconsistency between the RTI Act and Order XII of the SC Rules, and if so, whether Section 22 of RTI Act shall override provisions of SC Rules. As discussed above, Section 22 of RTI Act expressly provides that provisions of RTI Act shall have effect notwithstanding anything inconsistent therewith contained in Official Secrets Act, 1923, and any other law for time being in force or in any instrument having effect by virtue of any law other than RTI Act. Section 22 of RTI Act, in no uncertain terms, lays down that RTI Act shall override anything inconsistent contained in any other law. Order XII of SC Rules provides inter alia:
“1. Subject to the provisions of these rules, a party to any cause, appeal or matter who has appeared shall be allowed to search, inspect or get copies of all pleadings and other documents or records in the case, on payment of the prescribed fees and charges.
2. The Court, on the application of a person who is not a party to the case, appeal or matter, may on good cause shown, allow such person such search or inspection or to obtain such copies as is or are mentioned in the last preceding rule, on payment of the prescribed fees and charges.” (Emphasis added)
On a plain reading of Rules 1 & 2, it appears that citizens shall have right to access information pertaining only to judicial matters i.e. documents/records in a case. Rule 1 allows only a party to any cause, appeal or matter who has appeared to inspect and/or obtain copies of information pertaining to judicial matters. However, Rule 2 allows a person who is not a party to case, appeal or matter to inspect and/ or obtain information relating to judicial matters where ‘good cause’ is shown. In other words, where a person is not a party to a case, appeal or matter, she would be required to demonstrate ‘good cause’ before Court before being allowed to inspect and/or obtain copies of information sought.
As per Section 6(2) of RTI Act, an applicant making a request for information under RTI Act shall not give any reasons for requesting information. U/r 2, in order to determine what is ‘good cause’, it is necessary to enquire into purpose/reasons for which an applicant is seeking information. This is clearly violative of statutory mandate of Section 6(2) of RTI Act. Moreover, from use of word “may” in Rule 2, there appears to be a certain discretion conferred upon Court to determine what amounts to ‘good cause’, and even where ‘good cause’ has been shown, whether such information shall be provided or not. This is a clear embargo on enforcement of fundamental right to information of citizens. Citizens would have to justify any request for information by demonstrating ‘good cause’ U/ r 2 and ultimate decision whether information should be provided or not would lie with Court. Rule 2 appears to create an exemption in providing information, which is not envisaged in Sec 8 & 9 of RTI Act. At this juncture, it would not be out of place to mention that SC Rules neither provide for a specific time within which information shall be furnished, any appeal procedure, nor any penalty provisions where information is not provided.
Therefore, this Commission respectfully disagrees with observations of then C. I. Commissioner and holds that Rule 2, Order XII of SC Rules appears to impose a restriction on access to information held by or under control of a public authority, which is prima facie inconsistent with RTI Act. Therefore, in accordance with Section 22 of RTI Act, provisions of RTI Act shall override SC Rules.
Further, as per reply provided by PIO, information can be accessed by Appellant on Supreme Court’s website. As per Section 7(9) of RTI Act, information shall ordinarily be provided in form in which it is sought unless it would disproportionately divert the resources of public authority or would be detrimental to safety or preservation of record in question. RTI Act mandates that information shall ordinarily be provided in form in which it is sought or requested for. It may not be out of place to mention that more than 90% of our country’s population does not have access to computers and even where they do, may not understand how to access same. Therefore, there is a duty cast upon PIO to ensure that information sought by an applicant is provided in hard copy or in manner requested by applicant. Where no specific mention is made as regards manner in which information must be furnished, it may be presumed that citizen is seeking information in the form of hard copy. Moreover, even where PIO has indicated that information may be accessed from website, complete link/web address at which the requisite information is available, must be furnished.
Before parting with instant matter, this Commission has noted that Supreme Court, on various occasions, has ruled that it is incumbent on public sector institutions to be model employers following all laws in letter and spirit. This Commission humbly submits that Supreme Court should become a role model in implementation of provisions of RTI, 2005 in its true letter and spirit and inspire all public authorities to follow its lead in transparency. This would certainly enable better delivery of citizen’s fundamental right to information.
In view of foregoing arguments, this Commission respectfully disagrees with decision of then C. I. Commissioner that PIO, SC may choose to deny information sought under RTI Act and ask an applicant to apply for information under Order XII of SC Rules.
This Bench further rules that all citizens have right to access information U/s 3 of RTI Act and PIOs shall provide information sought to citizens, subject always to provisions of RTI Act only.
Where there are methods of giving information by any public authority which were in existence before advent of RTI Act, citizen may insist on invoking provisions of RTI Act to obtain information. It is citizen’s prerogative to decide under which mechanism i.e. under method prescribed by public authority or RTI Act, she would like to obtain information.
The Appeal is allowed. The PIO is directed to provide the complete information as available on
record in relation to queries 1 to 7 to the Appellant before June 5, 2011.
Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi
Information Commissioner
May 11, 2011
(In any correspondence on this decision, mention the complete decision number.)(SRG)
