Friday, November 5, 2010

The outgoing CIC interprets the RTI Act

Widening horizons

in New Delhi

The outgoing CIC interprets the RTI Act in a liberal spirit to direct the Calcutta High Court to provide information to an applicant.

Wajahat Habibullah, who completed his term as Chief Information Commissioner on September 30. He said that in the "context of the present when so-called Majesties have ceased... any claim of any public authority in India to have been established by an authority other than those mentioned under the RTI Act cannot be accepted".

IN a landmark decision before he completed his term as Chief Information Commissioner on September 30, Wajahat Habibullah rejected the Calcutta High Court's contention that it was not subject to the CIC's jurisdiction under the Right to Information Act, 2005.

The Calcutta High Court has the distinction of being the first High Court in India and one of the three chartered High Courts to be set up in India, along with the High Courts of Bombay and Madras. Formerly known as the High Court of Judicature at Fort William, it was brought into existence by the Letters Patent dated May 14, 1862, issued under the High Court's Act, 1861, which provided that the jurisdiction and powers of the High Court were to be defined by Letters Patent. (As legal instruments, letters patent were issued by the monarch, in the form of open letters, granting an office or a right to an institution.) The Act vested the authority in Her Majesty to issue letters patent under the Great Seal of the United Kingdom to establish High Courts of Judicature at Calcutta, Madras and Bombay. The Charter establishing the Calcutta High Court was published on July 1, 1862, establishing the High Court from the next day.

This background to the Calcutta High Court constitutes a key milestone in the evolution of India's legal history. With the attainment of Independence and the inauguration of the Constitution of India in 1950, the above background must have been confined to history. Or so one would have assumed, as the Calcutta High Court came to be treated on a par with any other High Courts in India.

High Court's stand

In a bizarre response to the CIC, however, the Calcutta High Court claimed that the Commission had no jurisdiction over it under the Right to Information Act. The Act has defined the CIC's jurisdiction as per the constitution of public authorities. In case the public authorities are established, constituted, owned, controlled or substantially financed by the Central government, then the jurisdiction to hear appeals and complaints is of the Central Information Commission.

The Principal Information Officer (PIO) of the High Court of Calcutta, Imran Hafiz, claimed in his written submission to the CIC, in an appeal case, that the High Court did not qualify as a public authority because it was not constituted by the Central government or even under the Constitution of India but by Her Majesty the Queen of England under Letters Patent dating from the time of Queen Victoria. He argued that the powers of such legislation (letters patent) were preserved and therefore could not be deemed to have been transcended by the power of the Government of India. He went on to submit that as per Article 246 of the Constitution, which deals with the law-making powers of Parliament, the Calcutta High Court was not under the control of the President of India or the Government of India.

Item 78 of List 1 of the Seventh Schedule, which is referred to in defining the powers of Parliament under Article 246 of the Constitution, includes the following in the powers of the Union: Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practice before the High Courts.

Item 79 of the same list mentions: "Extension of the jurisdiction of a High Court to, and exclusion of the jurisdiction of a High Court from, any Union Territory."

Whatever doubts one might have on the basis of the historical background of the Calcutta High Court about its present status must have vanished after these clear and unambiguous provisions of the Constitution, which did not make any exemption with regard to the Calcutta High Court.

However, Hafiz persisted with his outlandish claim in order to deny information sought by an applicant, Sundeep Goyal, under the RTI Act. Goyal sought the name and address of the person holding the position of "Receiver" in the Calcutta High Court in a pending suit. In two other applications, Goyal sought details of money held by the "Receiver" in the same suit, and copies of orders passed by the High Court in the same suit in 2006 and 2007.

To all his three applications, Goyal received an identical response from the PIO of the High Court: "The information asked for cannot be supplied as the matter being sub judice the disclosure of information may constitute contempt of court."

RTI applicant's challenge

Goyal challenged this response in his first appeal to the Appellate Authority of the High Court saying that the PIO had not stipulated the relevant provision of the RTI Act under which he had rejected Goyal's request for information.

On not receiving any orders on his first appeal, Goyal moved his second appeal before the CIC, referring to various decisions of the CIC that had held that "sub-judice" is not a valid ground for withholding information sought under the RTI Act.

In the mean time, the High Court's First Appellate Authority gave the decision stating that according to the High Court's rules, search of records, copies, and inspection at the request of any person not a part to a suit or proceedings, should be allowed when the matter is pending before the court, subject to the order of the judge. He, therefore, justified the denial of information by the PIO as the suit Goyal had referred to in his application was pending for disposal and there was no specific order of the court to supply information to him.

Goyal appealed to the CIC to set aside Hafiz's and the Appellate Authority's decisions and direct the PIO to fulfil the obligations of the High Court under the RTI Act.

CIC's stance

In his decision, Habibullah, interpreting the RTI Act, held that in case public authorities are established, constituted, owned, controlled or substantially financed by the Central government, then the jurisdiction to hear appeals and complaints is of the CIC. He agreed with Hafiz that the Calcutta High Court was not established or constituted by the Government of India or the Constitution of India, but added:

"Quite clearly, in the context of the present when so-called Majesties have ceased to exist and have been succeeded within India or from outside by the Sovereign Democratic Republic of India of which the Head of State is the President of the Union of India, any claim of any public authority in India to have been established by an authority other than those mentioned under the RTI Act cannot be accepted."

Interpreting Rule 10 of the Calcutta High Court (Jurisdictional Limits) Act 1919, Habibullah held that this rule does not debar disclosure of information in the manner prescribed. As part of the procedure for accessing such information, he held that it would be necessary for the PIO to make a reference to such judge, whose order would be required for the disclosure. It is not acceptable, he held, that because the application did not obtain the orders of the judge, it should be rejected.

Section 8(1) (h) of the RTI Act enables public authorities to deny information that would impede the process of investigation or apprehension or prosecution of offenders.

Interpreting this provision, the Delhi High Court held in 2007 that the authority withholding information must show satisfactory reasons explaining why the release of such information would hamper the investigation process. "Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material," the court held. Habibullah relied on this order of the Delhi High Court to reject the contention of the Calcutta High Court claiming exemption under this very provision.

Habibullah set aside the Calcutta High Court Appellate Authority's decision and directed the PIO of the High Court to supply Goyal the information he had sought, free of cost within 15 working days from September 29.


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The RTI Act was passed by the Lok Sabha (Lower House) on 11 May 2005, by the Raj Sabha (Upper House) on 12 May 2005 and received Presidential assent on 15 June 2005. Parts of the Act came into force upon Presidential assent, but the Act came fully into force on 12 October 2005, 120 days after Presidential assent.

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