The Supreme Court Still Adamantly Refuses to Yield to RTI
BY ANIKET AGA ON 03/09/2015
While the government often comes under fire for not effectively implementing the RTI Act, few have noticed that India’s highest court violates the Act routinely, and with an impunity that makes the government’s evasion of the RTI Act seem benign.
Consider the following:
On 20th February 2008, Satnam Singh, a prisoner in Ludhiana’s Central Jail sent a Right to Information (RTI) request to the Supreme Court (SC) asking for a copy of its guidelines on police reforms. The Public Information Officer (PIO) of the SC denied the request and referred Singh to the SC website. Singh filed a first appeal pointing out that as a prisoner, he had no access to a computer, and that, by not sending him the information, the SC was denying him his right. Hearing the appeal, the Registrar, SC too denied the request, now asking him to apply under the Supreme Court Rules 1966, instead of the RTI Act.
On 10th November 2007, Subhash Chandra Agrawal filed an RTI request with the SC asking for information concerning declaration of assets by Supreme Court Judges, among other things. The PIO denied the request, claiming he did not hold the information. Agrawal filed a first appeal asking that his application may be transferred to the Public Authority holding the information. The Registrar asked the PIO to re-consider the request, but he denied the information again. Agrawal moved the Central Information Commission (CIC) which in January 2009, asked the PIO to furnish the information [PDF].The SC challenged this order twice before the Delhi High Court (HC) even as it made some information about judges’ assets public on its website, but the HC upheld the CIC’s ruling.
In 2007, N. Anbarasan filed an RTI request before the Karnataka High Court (HC) for information pertaining to the scrutiny and classification of writ petitions, among other things. The PIO denied the information and asked Anbarasan to apply under the Karnataka HC Act and Rules. Anbarasan approached the Karnataka Information Commission (KIC), which ruled in his favor. The PIO challenged the KIC’s order before the HC, which quashed it. Subsequently, AKM Nayak, the State Chief Information Commissioner, and a former Additional Chief Secretary, appealed against the HC ruling before the SC. The SC not only dismissed the appeal but fined Nayak 1 lakh rupees for “wasting public money for satisfying their ego.” [PDF]
Although the SC frequently agonises over governments’ lack of transparency, its own Registry has steadfastly resisted yielding information under the Act. In the past decade of the Act’s existence, the SC has fought many RTI applicants tooth and nail, forcing them to the stage of second appeal. Where the CIC has ruled in favor of the applicants, the SC has typically challenged its decisions before the Delhi HC.
The SC has fought these battles not for some significant intrusion of transparency, but for routine matters such as providing pendency figures: for example, the applicant who sought this information in 2009 had to wait until 2014 just to get the Delhi High Court to rule that the [PDF] SC may provide the information.
I was unaware of the SC’s hostility towards the RTI Act, until two years ago, when I called the office of the Assistant Registrar & PIO to confirm the address where I should send an RTI request. For my research, I wanted a copy of the affidavits filed in a public interest litigation (PIL) heard by the SC between 1999 and 2004.
The official who answered my call wouldn’t identify himself, and asked me if I was party to the case. When I answered no, he said, “We do not provide copies of the judicial record to non-parties,” and hung up. In all my experience of seeking information under the RTI Act, never before had an officer declined to provide information so transparently. I called back to ask how might one access judicial records. The official asked me to look up SC Rules 1966.
RTI Act vs Supreme Court Rules
As I found out after reading about several RTI cases involving the SC, referring applicants to its own rules is a significant tool deployed by the SC to keep the RTI Act at bay. Order XII, Rule 2 of the SC Rules 1966 [PDF] says:
“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 search, inspect or get copies of all pleadings and other documents or records in the case, on payment of the prescribed fees and charges.”
In several ways, this rule gives the SC greater powers to withhold information from citizens, vis-à-vis the RTI Act. Unlike the RTI act:
The rule insists on the applicant providing a reason, and makes the availability of information contingent upon “good cause shown.”
It prescribes no time limit within which information is to be provided.
It lists no penalties for delaying or failing to provide the information.
It has no mechanisms for appeal.
These inconsistencies have to be resolved in favour of the RTI Act as per the non-obstante clause provided in Section 22 of the RTI Act. Yet, I found that the SC has been maintaining that it can deny RTI requests, and limit citizens to the SC Rules.
The SC, represented by its Assistant Registrar and Registrar has been relying on two ruses. First, as per the SC Rules, it was “the Court” [PDF] which could take a decision on admitting requests to access judicial records and the humble Registrar and the humbler Assistant Registrar could scarcely usurp the authority of “the Court.” Second was the ruse that the RTI Act, under Section 6(3), allowed Public Authorities to frame rules to access information and the SCR were Supreme Court’s Rules to address RTI. By this logic, the Supreme Court had framed rules in 1966 itself anticipating the RTI Act, which came after 40 years.
The Role of the CIC
The dispute over RTI and SC Rules came before the CIC as early as 2006 – a year after the passage of the Act – in the case of Manish Khanna vs. The Supreme Court of India. [PDF] The appeal was heard by former bureaucrat and then Chief Information Commissioner, Wajahat Habibullah. Ignoring the four fundamental inconsistencies listed above, Habibullah startlingly ruled that there was “no inherent inconsistency” between the Act and Order XII Rule 2. In his view, Rule 2 merely provided an “alternative procedure” to access the information without denying it in any way – ignoring the “on good cause shown” condition.
With this as the foundation, he ruled that the Rule 2 was a “special enactment,” not superseded by a general law enacted later. This ruling established the precedent by which the CIC has consistently ruled in favour of the SC Rules 1966 against the RTI Act.
By my rough calculation, the SC’s refusal to provide information about judicial records under the RTI Act has come before the CIC nearly 50 times in the last ten years – this is just counting the cases which have been decided by the CIC; many more await a hearing. Keeping in mind that not every applicant has the time, resources and the skills to draft first and second appeals, one can say that a very large number of RTI requests are being summarily denied by the SC each year – conservatively speaking about 20 annually. Thus, on the back of this ruling, the SC Registry has found a third ruse to deny information: citing the precedent set by Habibullah’s ruling.
The only exception to this has been a decision in 2011 by Information Commissioner Shailesh Gandhi, who observed that Order XII curtailed the fundamental right of citizens to free information because of the aforementioned inconsistencies. He ruled [PDF] that the PIO must provide information subject to the provisions of the RTI Act, and that it was up to applicants to decide whether they wished to seek information under the RTI Act or the SC Rules.
The SC instantly moved the Delhi HC against this ruling, where Justice S. Muralidhar immediately stayed the matter and, further, restrained the CIC from hearing matters on similar questions. The case remains pending before the HC. Perhaps to do away with the criticism that rules framed in 1966 could scarcely be said to address a landmark law enacted in 2005, the Supreme Court revised its rules in 2013. Under SC Rules 2013, issued in August 2014, Order XII Rule 2 has become Order XIII Rule 2 – with no meaningful difference for the information-seeker.
Despite the nameless SC officer telling me outright that they will not provide me with copies of the affidavits I was seeking, I decided in January 2014 to file my RTI request anyway. For good measure, I requested the same information under Order XII, Rule 2 as well. It would be one thing if the SC was providing information to citizens under its own rules, but even that is not the case, as I found out, and as others have experienced too [PDF].
The PIO denied my RTI request and asked me to approach the Court under Order XII Rule 2, which I had already done. This second request got no reply for over a month, at which point I followed up with the SC over the phone. After several evasive conversations, an officer finally informed me, again, that they would not release the information to me. When I asked the officer for her name so that I may state this position in my first appeal, she declined and hung up.
I eventually received a reply to my request under Order XII, Rule 2. The Assistant Registrar (Copying) now insisted that I apply under Order XII, Rule 2 read with Order X Rule 6(1), i.e., I present my application for information in person at the filing counter of the Court. This additional hurdle was entirely new, as the SC had not mentioned it before the CIC. Moreover, it is entirely inconsistent with the RTI Act because it limits the availability of information only to those who can make their way to the filing counter of the SC – not the easiest of tasks for most citizens, particularly the vast majority of Indians who do not live in Delhi.
I filed a first appeal before the Registrar, pointing out that SC had refused information through both the routes, and invented new hurdles to access information. The Registrar found my appeal “to be without any merit” and dismissed it. I filed a second appeal before the CIC in July 2014, which is yet to be scheduled for hearing.
In my experience of filing RTI requests with multiple public authorities, no government body comes close to the SC in terms of contempt towards RTI applications. This attitude seems to be pervasive in the higher judiciary. The summary denials, fighting ordinary applicants before the CIC, and even hauling them before the Delhi HC suggests that as far as India’s higher judiciary is concerned, transparency is good for others, not for itself.
Aniket Aga is a PhD candidate at the Department of Anthropology, Yale University. He tweets at @AgaAniket