Critical Analysis of Supreme Court Judgements on the RTI Act, 2005
By Shailesh Gandhi,
Former Central Information Commissioner
Judgment: Manohar s/o Manikrao Anchule vs. State of Maharashtra AIR 2013 SC 681
The issue before the Court: It was a case where disciplinary action had
been recommended against the PIO under Section 20 (2) of the Act by
the Information Commission.
The observations of the Court:
Para 11. The impugned orders do not
take the basic facts of the case into consideration that after a short
duration the appellant was transferred from the post in question and
had acted upon the application seeking information within the
prescribed time. Thus, no default, much less a negligence, was
attributable to the appellant.
12. Despite service, nobody appeared on behalf of the State Information
Commission. The State filed no counter affidavit.”
The Court held that: The Commission’s order recommending
disciplinary action against the PIO under Section 20 (2) of the Act, was
quashed and set aside.
Our analysis of the judgment: The Supreme Court having regard to
the factual matrix of the case, set aside the decision of the Commission
and the High Court. Can this be a legitimate exercise in SLP jurisdiction
or in Writ jurisdiction by High Courts ?
The eleven judge bench of the Supreme Court in Hari Vishnu Kamath
v. Ahmad Ishaque 1955-IS 1104 : ((S) AIR 1955 SC 233) has laid down
(1) Certiorari will be issued for correcting errors of jurisdiction;
(2) Certiorari will also be issued when the Court or Tribunal acts
illegally in the exercise of its undoubted jurisdiction, as when it decides
without giving an opportunity to the parties to be heard, or violates the
principles of natural justice;
(3) The court issuing a writ of certiorari acts in exercise of a supervisory
and not appellate jurisdiction. One consequence of this is that the court
will not review findings of fact reached by the inferior court or tribunal,
even if they be erroneous.
(4) An error in the decision or determination itself may also be amenable
to a writ of certiorari if it is a manifest error apparent on the face of the
proceedings, e.g., when it is based on clear ignorance or disregard of the
provisions of law. In other words, it is a patent error which can be
corrected by certiorari but not a mere wrong decision."
The RTI Act does not have any provision for an appeal beyond the
Commission as per Section 23. The Writ jurisdiction being a
Constitutional remedy, may be resorted only in cases as set out
hereinbefore in Hari Vishnu Kamath’s case. If the Order of the
Commission does not fall into any of the 4 criterion stated in the
aforesaid ruling, the High Courts and the Apex Court should not
exercise their Writ or SLP jurisdiction.
The judgment of the Supreme Court is based on its own assessment of
the “facts of the case” which is not consistent with the decision in
aforesaid Hari Vishnu Kamath and also series of rulings of the Apex
Court, wherein it is held that, in SLP jurisdiction the Apex Court would
not interfere in finding of facts, unless perversity in finding of fact is
demonstrated. In the present case, there is no finding by the Apex Court
that findings of the Commission was perverse or irrational. It appears
the court has treated this is an appeal, for which it has no jurisdiction.