RTI Act and RTI Rules: RTI Rules of Bombay High Court
In the September issue of BCAJ, I covered a decision of three-member Bench of Maharashtra State Information Commission. In this issue, I cover one more.
Under the RTI Act, there are two types of authorities to which the Act is applicable: Public Authority and Competent Authority. The latter is defined u/s.2(e) as under:
“Competent authority means —
(i) the Speaker in the case of the House of the People or the Legislative Assembly of a State or a Union Territory having such Assembly and the Chairman in the case of the Council of States or Legislative Council of State;
(ii) the Chief Justice of India in the case of the Supreme Court;
(iii) the Chief Justice of the High Court in the case of the High Court;
(iv) the President or the Governor, as the case may be, in the case of other authorities established or constituted by or under the Constitution;
(v) the Administrator appointed under Article 239 of the Constitution;
This case deals pertains to the Bombay High Court, Mumbai. It is the decision of three-member Bench comprising the then State Chief IC (Shri Vilas Patil), SIC, Amravati (Shri M. L. Shah) and SIC, Aurangabad (Shri D. B. Deshpande).
Shri Anandnatraj submitted an RTI application to PIO, in the office of the Registrar, Bombay High Court (BHC) seeking the information in respect of writ petition Nos. 2650 of 95 and 2689 of 95. He asked for photocopies of all papers filed and orders issued in respect of the petition.
The PIO expressed his inability to furnish the information, stating that “the application was not complete in all respects as received as per the Bombay High Court Right to Information Rules, 2006. As per the said Rules, a Court Fee Stamp of Rs.12 is required on the application, however, Rs.10 Court Fee Stamp is affixed. Hence there is deficit of Court Fees of Rs.2. As per the said Rules, the applicant has to submit the application in prescribed format. Please see High Court website ‘bombayhighcourt.nic.in’ for the said Rules. Moreover, in view of the provision to Rule 9 and Rule 19 of the Bombay High Court Right to Information Rules, 2006 the information in respect of judicial proceeding or records cannot be supplied under Right to Information, but you may obtain the said Information as per the procedure prescribed in the Bombay High Court Rules and Orders”.
The applicant preferred an appeal to the First Appellate Authority (FAA). The grounds of appeal were: “the BHC RTI Rules, 2006 are not consistent and in agreement with the provisions of the Right to Information Act, 2005. As provided in Rule 9 of the said Rules, that is, Rule 9 in para 1 obtaining information in respect of third party is permissible by submission of application in Form ‘A’ as per Rule 3, the same rule in para 2 forbids the information of 3rd party in respect of judicial proceedings and records. The said contradiction in clause 9 needs proper interpretation/classification by the Public Information Officer in his reply.”
FAA responded “it is clear that the reply sent by the Public Information Officer cannot be faulted with. The information sought is relating to record of judicial proceedings and copies of the same can be obtained by applying at the facilitation centre of the High Court.” The appeal was disposed of accordingly.
The applicant then furnished the second appeal to Maharashtra Information Commission. First the appeal was heard by a single member by one SIC, Shri Ramanand Tiwari. However he passed on order that “since the issues involved are very important, I suggest that the case should be heard by the full Bench of the Commission or least a Bench consisting of three Commissioners and directed to the Secretary of the Commission to obtain the orders of the CIC and do the needful.”
Accordingly a three-member Bench heard the matter on 14-3-2011. The appellant submitted his written statement and argued also as briefly noted hereinafter.
The respondent PIO also submitted written statement and argued that the PIO and FAA have acted according to BHC RTI Rules which are made by the Chief Justice of the HC, being the ‘Competent Authority’ u/s.28 of the RTI Act.
The main contention before the Commission was that “rules framed by the Competent Authority u/s.28 of the Act, can only be for giving effect to and for carrying out the provisions of the Right to Information Act and cannot be contrary to the provisions of the Right to Information Act. They would be ultra vires and illegal and consequently unenforceable in view of the provisions of section 22 of the Act”.
“The Chief Justice of the Bombay High Court cannot negate the provisions of the Right to Information Act, since neither section 8, nor section 24 gives exemption in respect of providing information related judicial proceeding and records.”
The Commission made the following decision:
“Hence, it is necessary to examine the rules of Interpretation of the statutes.
Once the Legislature has passed the Act, it is subject to judicial review in respect of the constitutionality and the implementation of the provisions of the said Act.
No doubt, the rules made in exercise of the powers delegated under the principal Act, for carrying out the purpose laid down in the principal Act, cannot travel beyond the scope of the Act, nor can they, themselves, enlarge the scope of statutory provisions. They cannot also militate against the provision under which they were made (AIR 1956 SC, AIR 1957 SC 532).
However, the Rules framed under the Act have the force of the Law. (AIR 1954 All 639).
Therefore, the function of the Court is to apply the law as it stands. It is not for the Court to re-write the law, even though the Court notices anomalies and omission and considers the provision as they stand unreasonable (AIR 1982 Ker. 126).
In view of such principles of interpretation of statutes, the Commission has to give the decision as per the rules framed by the Chief Justice High Court of Judicature of Bombay as a Competent Authority u/s.28 of the Act.
Therefore, the decision of the First Appellate Authority is upheld and there is no necessity to interfere with the order of the First Appellate Authority.
However, in view of the points raised by the appellant, the Commission, in view of provisions of section 25(5) of the RTI Act, recommends to the Public Authority, that is the High Court to examine judicially the rules framed by the Chief Justice of the Bombay High Court, whether they are in conformity with the provisions or spirit of the RTI Act, and if found not to be in conformity with the provisions or spirit of the Act, then take such steps to promote such conformity”.
[Shri S. Aanandnatraj, Mumbai v. FAA and PIO of High Court of Mumbai, decision dated 29-4-2011 under Appeal No. 5842/02]
