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karira

Justifications not part of info under RTI: HC

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karira

As reported by Gauree Malkanekar of TNN in timesofindia.indiatimes.com on 09 July 2009:

Justifications not part of info under RTI: HC - Goa - Cities - The Times of India

 

Justifications not part of info under RTI: HC

 

 

PANAJI: An order of the high court of Bombay at Goa, stating that the definition for information under the Right to Information Act cannot include answers to the question "why", which would be the same thing as asking the reason for a justification, has been circulated to Central ministries and departments.

 

Bringing relief to public information authorities, the high court of Bombay at Goa held: "The public information authorities cannot expect to communicate to citizens the reason why a certain thing was done or not done in the sense of justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information."

 

The judgment was circulated by office memorandum dated June 1, 2009 to all ministries, departments and state information commissions of the government of India by the Centre's department of personnel and training. The judgment has also been circulated in the Rajya Sabha, the Lok Sabha, and offices of the President and Prime Minister.

 

The judgment, dated April 3, 2008, came in favour of Goa's director of education Celsa Pinto, who had challenged an order dated July 27, 2007 passed by the Goa Information Commission holding her responsible for furnishing "incorrect, incomplete or misleading information".

 

Education department's legal officer Avinash Nasnodkar said that the judgment appears to have brought relief to several government officials across the country. "Several copies of the judgment were picked up from us by all government offices in Goa and the judgment has now been circulated all over the country by the central government. At times officials are harassed using the RTI act for wrong purposes. They are expected to have an answer to anything and everything. At least now they will not be challenged or penalised for not justifying things they have no control over."

 

The judgment states that section 2 (f) of the RTI Act defines information to mean "any material in any form, including records, documents, memos, e-mails, opinions, advises, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."

 

The case pertained to information sought by Milan Natekar, a government servant, seeking to know from the education director, in this case also the public information officer, "why the librarian from the engineering college was not considered for promotion for the post of curator in the Central library when it had fallen vacant due to retirement" of the person holding the position.

 

Initially, the director had replied "N.A." to all questions posed by Natekar, and when the latter sought clarifications, the director replied that the abbreviation stood for "not available". To the question as to why the post of librarian was not filled up, the director stated: "I don't know". Natekar then approached the Goa Information Commission (GIC).

 

Ruling in the matter, the GIC held that the education director was guilty of furnishing incomplete, misleading and false information and imposed a penalty of Rs 5,000 which was "liable to be deducted from her salary from the month of August 2007".

 

Nasnodkar and advocate J A Lobo challenged the commission's order in the high court. Lobo argued that GIC wrongly held that the director provided incomplete and misleading information.

 

The court held that, "it is not possible to comprehend how the commission has come to this conclusion" and that it saw nothing wrong in the director's reply that she does not know the information because "PIO cannot manufacture the information".

 

The court also held that "it is not possible to accept the reasoning of the commission. There is no substance in the observation that merely because the director said not available' and later on corrected her statement and said that she does not know and the petitioner provided incomplete and incorrect information.

 

"In this view of the matter, the order of the commission appears to suffer from a serious error of law apparent on record and results in the miscarriage of justice," the court held.

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colnrkurup

I think that the case is not presented correctly before the High Court. The High Court cannot rule out Section 4(1)(d) of the RTI Act in cases the information on the reasons is "Held" by the public authority.

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gurkirat.dhillon

As far as "appointment of librarian" is concerned, i think the applicant

 

has made a mistake by not quoting Section 4(1)(d) in his application.

 

Ofcourse, if he is affected by the act of not appointing a librarian.

 

And everyone in the chain including the HC and the Info commission

 

seems to have missed out on this !

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sandeepbaheti

Sec 4(1)(d) requires every public authority (and not the PIO) to give reasons for administrative decisions. But what if an administrative decision is actually made without giving reasons? Who is to be penalized? If later someone asks reasons from the PIO, he certainly can't be expected to "manufacture" reasons. Nor can he transfer the question to the person who made such decision because if that happens he also will only manufacture post facto reasons. To that extent, the High Court decision is acceptable to me.

Unfortunately, the RTI Act does not prescribe any penalty for non-compliance with Sec 4.

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anusinha

Standing alone the decision of the honorable court seems to be reasonable. If the information seeker was affected by the decision regarding the appointment of the librarian it means that the way he/she pursued the case was wrong. Its also evident that the RTI Act requires clarifications and further interpretations regarding various clauses and sections.

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sidmis

The Goa High Court's decision is in line with the spirit of the act. Only pre-existing information can be accessed.

 

The Hon. HC may have stretched the issue a little bit.

 

It is a different issue that in this county most of the decisions are taken arbitrarily and without justification. (including CIC & SIC decisions) :mad:

 

Citizens' have to find alternate routes to remedy such arbitrary action.

 

Goa High Court order is reproduced below. Is this order binding on all other states or limited to Goa Only.

 

At the end of the order it was mentioned as "Rule is made absolute.". What does it mean?

 

Death of Sec. 4(1)d ?

 

 

1

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO.419 OF 2007.

Dr. Celsa Pinto,

Ex-Officio Joint Secretary

(School Education),

Public Information Officer

(Under R.T.I. Act) Directorate

of Education, 18th June Road,

Panaji, Goa. ..... Petitioner.

Versus

1. The Goa State Information

Commission Through the State

Chief Information Commissioner

And the State Information

Commissioner, Ground Floor,

Shrama Shakti Bhavan, Patto

Plaza, Panaji, Goa.

2. Ms Milan G. Natekar,

Sadashiva Bhuvan,

Mapusa, Bardez, Goa. ..... Respondents.

Mr.J.A.Lobo,Advocate for the Petitioner.

Mr. D. P. Bhise U/LAS , Advocate for the respondent No.2.

Ms Sapna Mordekar, Advocate for the respondent No.1.

Coram :- S. A. BOBDE, J.

Date : - 03st April, 2008.

ORAL JUDGMENT :

1. Rule returnable forthwith.

2. Heard by consent.

2

3. The petitioner is Public Information Officer appointed as such under the Right to Information Act, 2005. She has challenged the order dated 27.7.2007 passed by the Goa Information Commission holding her responsible for furnishing incorrect, incomplete or misleading information to the respondent No.2 and also for providing false information.

 

4. The respondent No.2 had sought the following information from the P.I.O. under the Right to Information Act, 2005 (hereinafter referred to as “the Act”). Information sought by the Complainant Information provided

by the Opponent III 186/c letter from GPSC No.COM/1

/1/15/1705/754 dated 03/11/2006

N.A.

XIV 146/c letter No.COM/11/11/15(1)05 dated 12/06/2006 regarding filling up the post of Curator clarify

N.A.

XV 117/c letter from GPSC to communicate seniority list of Librarian may be sent if not then kindly clarify under what provision of Rule the department to fill up the post by promotion.

N.A.

1 Copy of the Seniority list of the Common Cadre of the Librarian post

from the Directorate of Education, Technical Education and Higher

Education.

N.A.

2. Why the post of curator was not filled N.A.

3 up by promotion after retirement of V.B.Hubli as the post filled by direct

recruitment through GPSC

3 Why the Librarian from the Engineering College was not considered for

promotion for the post of Curator in the Central Library when it was fallen

vacant due to retirement of Shri V. P. Hubli. N.A.

Item 1,2 & 3 are relevant for a decision of this case.

5. Initially the petitioner wrote the words “N.A.”against all

the 3 requisitions i.e. not available. Thereafter, the second respondent

sought clarification as to what the petitioner made clear by the

abbreviation “Not Available”. The petitioner clarified that it means

“Not Available”. As to other two questions the petitioner clarified by

stating “I don't know.” The respondent No.2 took the matter to the Goa

Information Commission.

6. The Goa Information Commission has held the petitioner

guilty of furnishing incomplete, misleading and false information and

has imposed the penalty of Rs.5,000/- which is liable to be deducted

from the petitioner's salary from the month of August 2007. This order

is under challenge. Mr. Lobo, the learned Counsel for the petitioner

submitted that the Goa Information Commission (hereinafter referred as

4 “Commission”) has wrongly held that the petitioner provided

incomplete and misleading information on the 3 points.

 

7. The Commission has with reference to question No.1 held

that the petitioner has provided incomplete and misleading information

by giving the clarification above. As regards the point No.1 it has also

come to the conclusion that the petitioner has provided false information

in stating that the seniority list is not available. It is not possible to

comprehend how the Commission has come to this conclusion. This

conclusion could have been a valid conclusion if some party would have

produced a copy of the seniority list and proved that it was in the file to

which the petitioner Information Officer had access and yet she said

“Not Available”. In such circumstances it would have been possible to

uphold the observation of the Commission that the petitioner provided

false information in stating initially that the seniority list is not

available.

 

8. As regards the requisition Nos. 2 & 3 by which the

petitioner was called upon to give information as to why the post of

Curator was not filled up by promotion and why the Librarian from the

Engineering College was not considered for promotion, the petitioner

had initially answered by stating that the information was “N.A.”(Not

Available). Thereafter, she had clarified by stating that it means “I don't

know”. The Commission has initially observed in para. No.13 that it

does not see anything wrong in the petitioner's reply that she does not

know the information because “P.I.O. cannot manufacture the

information”. However, in para. No.14, the Commission has observed

that the petitioner has not supplied a correct information because she

corrected information on points No.2 & 3. It can be recalled that the

petitioner corrected the information by explaining that “Not Available”

meant she does not know. It is not possible to accept the reasoning of

the Commission. There is no substance in the observation that merely

because the petitioner initially said “Not Available” and later on

corrected her statement and said she does not know and the petitioner

provided incomplete and incorrect information. In the first place, the

Commission ought to have noticed that the Act confers on the citizen

the right to information. Information has been defined by Section 2(f)

as follows.

“Section 2(f) - Information means any material in any

form, including records, documents,memos e-mails,

opinions, advices, press releases, circulars, orders,

logbooks, contracts,reports, papers, samples, models, data

material held in any electronic form and information

relating to any private body which can be accessed by a

public authority under any other law for the time being in

force; ” The definition cannot include within its fold answers to the question “why” which would be the same thing as asking the reason for a

justification for a particular thing. The Public Information Authorities

cannot expect to communicate to the citizen the reason why a certain

thing was done or not done in the sense of a justification because the

citizen makes a requisition about information. Justifications are matter

within the domain of adjudicating authorities and cannot properly be

classified as information.

 

9. In this view of the matter, the order of the Commission

appears to suffer from a serious error of law apparent on record and

results in the miscarriage of justice. In the result, the impugned order is

hereby set aside.

 

10. Rule is made absolute.

S. A. BOBDE, J.

SMA

WP.419.2007.03042008.pdf

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rajub
The Goa High Court's decision is in line with the spirit of the act. Only pre-existing information can be accessed.

 

The Hon. HC may have stretched the issue a little bit.

 

It is a different issue that in this county most of the decisions are taken arbitrarily and without justification. (including CIC & SIC decisions) :mad:

 

Citizens' have to find alternate routes to remedy such arbitrary action.

 

Goa High Court order is reproduced below. Is this order binding on all other states or limited to Goa Only.

 

At the end of the order it was mentioned as "Rule is made absolute.". What does it mean?

 

Death of Sec. 4(1)d ?

 

 

 

I don't think it is the death of sec 4(1)(d).

 

It is true that PIO can not manufacture information. It is also true that if reason is not recorded PIO cannot be held guilty for non supply of information.

 

But section 4(1)(d) puts obligation on PA that reason must be provided to affected person. The section does not say only recorded reason can be provided.

 

Even if the reason is not recorded for a particular decision the PA must direct the decision making officer to put the reason on record.

 

As rightly said by Sidharth (sidmis) many a times decisions are made arbitrarily and hence the reasons are not recorded. But the purpose of section 4(1)(d) itself is to curb the menace of arbitrary and vimsical decisions.

 

Also as said by sandeep the decision making officer may manufacture post facto reason but the reason will be recorded and provided to the affected person. One must not forget that originally reason was not recorded because it was inconvininet to record the reason. So it is equally inconvinient to "manufacture" the reason and the manufactured reason can well be used to pin down the guilty if intelligently analysed.

 

One may argue that what will ordinary person not having enough inteligence power to properly and effectively use the laws. But unfortunately this is how the things work all over the world.

 

One final thought. Can PA argue there is no reason behind a prticular decision? it cannot. Because only animals devoid of intelligence can act instinctively. A human being always takes a decision after he thinks the particular decision is proper and correct.

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SomeGuy
"Rule is made absolute.". What does it mean?
It usually means that an initially contingent decision (rule) - stay order, or show-cause notice - is made absolute, i.e. is the final decision of the court. Google "rule-nisi".

 

N.A.

XIV 146/c letter No.COM/11/11/15(1)05 dated 12/06/2006 regarding filling up the post of Curator clarify

N.A.

XV 117/c letter from GPSC to communicate seniority list of Librarian may be sent if not then kindly clarify under what provision of Rule the department to fill up the post by promotion.

N.A.

This part of the RTI application appears not to have been addressed by the HC judgment, although I see "NA" sprinkled liberally here as well. Its hard to be sure since the formatting appears to be somewhat mixed up, but this appears to ask for a seniority list and alternately a rule, seperate from queries 1, 2, and 3. Does the SIC decision say anything about it? Justice Bobde states that seniority list in 1. has to be produced from files accessible to PIO to demonstrate that NA constituted false Information. What about provision of Rules, which seems to be an alternate query here. Is "NA" a valid response to a query asking for rules?

 

regards,

SomeGuy

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sidmis

> Unfortunately, the RTIvbglossarlink.gif Act does not prescribe any penaltyvbglossarlink.gif for non-compliance with Sec 4vbglossarlink.gif.

 

 

IPC may help.

 

IPC 166/167

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rajub

If the stakes are high the applicant should file revision in HC with the help from some expert in RTI matters (all advocates are not expert in RTI matters).

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colnrkurup

Firstly, as per the RTI Act the PIO is not duty bound to furnish any information which is not HELD. In the case of "Reasons", every order is suppossed to be reasoned out. That is what the Supreme Court has been reiterating even recently. But the PIO is neither expected to crease a decision nor refer it to those who made ur That is beyond the scope of RTI Act. To be frank the PIO should reply the applicant that "As per the records held neither the orders are reasoned out nor any reason recorded". .No one can order the PIO to do anything else. But his superiors won't spare him. A litigator can get the decisions so made without any reason thrashed by the Supreme Court under the supreme count directives. In this case the PIO should have confidently replied that "The information sought is NOT HELD". The SIC's orders were of too standard.

 

The word abolute means:

1.Perfect in quality or nature; complete.

2.Not mixed; pure. See synonyms at pure.

3. a.Not limited by restrictions or exceptions; unconditional: absolute trust.

b.Unqualified in extent or degree; total: absolute silence. See Usage Note at infinite.

4.Unconstrained by constitutional or other provisions: an absolute ruler.

5.Not to be doubted or questioned; positive: absolute proof.

 

I think that " Rule is made absolute " means that the HC issue this judgment strictly commensurating with the existing provisions of the Rules viz., RTI Act. Rather the HC reiterate that they have not introduced any new factor needing anything different from what is given in the RTI Act.

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sidmis

The order of GHC is not at all a land mark judgement as compared to other pronouncements from various other High Courts especially some of the gems form DHC.

 

What I find amusing is the exuberance shown by DOPT in issuing a circular basing upon this order. The euphoria shown by DoPT is palpable. Have they ever issued any other notice/circulars based upon any previous High Court orders ? Especially the ones by Justice Bhatt.

 

> In this case the PIO should have confidently replied that "The information sought is NOT HELD".

The best way is to supply a copy of the order/decision etc. and let the info seeker make his/her own inference.

 

Even telling NOT HELD tantamount to giving an opinion which the PIOs are not required to provide. Sometimes reasons are embedded into the order/decisions in such a way they are not clearly decipherable.

 

> The SIC's orders were of too standard.

 

The SIC's orders were of too sob standard.

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colnrkurup

It was a typing error. The post was not available for check as this it was visible only after moderation. What I meant was "The SIC's orders were of TOO LOW STANDARD'. Yes - SUB-STANDARD,.

 

Sidharth, for my information can you kindly elucidate as to how " Even telling NOT HELD tantamount to giving an opinion". ?

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sidmis

> Sidharth, for my information can you kindly elucidate as to how " Even telling NOT HELD tantamount to giving an opinion". ?

 

Dear Col.

 

That was written in the context of this particular post.

 

In some decisions / orders reasons may not even be written separately with bold heading. Sometimes reasons are there but not distinct.

 

AS you have already mentioned in your post "In the case of "Reasons", every order is suppossed to be reasoned out."

 

So how the PIOs know which part of a decision really constitute reasons and which part is not. We cannot expect the PIO to read out the entire decision and decide for himself whether reasons are there or not. It is best left to the info seeker to decide and act upon it.

 

Why guess something and take a risk there when a better way is available.

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taurus

PIO is not the repository of all information. He is only a conduit to enable the flow of information to the public. He asks the holder of information to furnish the info sought for,including the reasons. The PA is duty bound to give the reasons under sec 4(1)(d) of the Act. As rightly pointed outin an earlier post, if the reasons are not already recorded they have to be made explicit now. The High Court has not considered the provisions of Sec 4(1)(d) at all. This may be because it was not brought to its notice by either parties. Hence there is little for DoPT and other PAs to make merry about. This judgment, at best, can be applicable to the facts and circumstances of this case only and not for any other similar cases that may come up.

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SomeGuy

Dear Col Kurup,

I think that " Rule is made absolute " means that the HC issue this judgment strictly commensurating with the existing provisions of the Rules viz., RTI Act. Rather the HC reiterate that they have not introduced any new factor needing anything different from what is given in the RTI Act.
The word "rule" here refers to the present order of the court, rather than any law, regulation, or bye-law. This wikipedia article: Rule absolute, seems to have a good explanation for the origin of terms/phrases "rule nisi", "rule (is made) absolute", and "rule (is) discharged", which are often used in Indian HC and SC judgments.

 

The Supreme Court Rules appear to support the interpretation in question.

 

regards,

SomeGuy

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jps50

For reasons for decision pl refer my blog at http://www.rtiindia.org/forum/blogs/jps50/135-reasons-decision.html

 

Since sec 4.1.d is not presented before the court nor commented upon in the judgement of hon'ble High Court of Bombay at Goa, it is creating confusion. However, no Court can dilute any act passed by the Parliament, unless it is unconstitutional or patently illegal.

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rajub

Perfectly said jps50!

 

The fears of death of sec 4(1)(d) are unfounded.

 

Rather this section (4(1)(d)) is not referred at all in the judgement.

 

It is not clear whether petitioner had used the section in his argument.

 

But we can safely assume the petitioner has not used the section in his argument.

 

Had he used the section the judgement would have been different.

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jayeshbheda

The judgment of Bombay(Goa bench) is very damaging and now the central government appears to taking mis advantage of the judgment by circulating among all the departments not to provide any explanation or to answer any "Why".

 

The judgment is clearly per incuriam and it appears that the HC has not read the RTI Act at all while passing the order. It would be the duty of any court to apply and interpret provisions of statute even if litigant has not mentioned in arguments.

 

The preamble (which is key to interpret any legislation in case of ambiguity in any part of the statute ) of the RTI Act itself provides that the RTI Act has been enacted in order to promote transparency and accountability; and to contain corruption and to hold governments and their instrumentalities accountable to the governed.

 

The SC recently in the matter of Arnit Das v/s. State of Bihar, Dt. 09/05/2000 has again highlighted the importance of Preamble and object stating

 

"The ambiguity can be resolved by taking into consideration the Preamble and the Statement of Objects and Reasons. The Preamble suggests what the Act was intended to deal with. If the language used by Parliament is ambiguous the Court is permitted to look into the preamble for construing the provisions of an Act; A preamble of a statute has been said to be a good means of finding out its meaning and, as it were, the key of understanding of it; The Preamble is a key to un-lock the legislative intent. If the words employed in an enactment may spell a doubt as to their meaning it would be useful to so interpret the enactment as to harmonise it with the object which the Legislature had in its view."

 

Therefore the object of the RTI Act reading with the Preamble and other provisions like S.4(1)(d) , S.8(1) where the statue makes it very clear that information which cannot be denied to the state legislation or parliment cannot be denied to any person.

 

Urgent steps are required to overrule the judgment by larger bench or SC.

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joelgm

Hello Everyone,

 

Though I am posting in this forum for the first time, I'm not new to the RTI act, having filed some requests under RTI Act myself. I read through all your opinions thoroughly. For my part, I believe that the decision and language of the High Court was damaging to the very essence of the RTI Act. Apparently as soon as this decision was announced, the SIC has sent copies of the rule to every PIO.

 

Asking for reasons for why something was done, was a very effective way of curbing corruption and getting accountablity. Recently I gave a request under RTI asking for info why I was taxed excessively. The PIO after referring the matter to other PIOs, gave me the reply quoting this particular decision of Bombay High Court, and attaching a copy of the decision, and stated that the info sought "does not come under the RTI Act"!

 

My personal opinion about the decision:

Though Section 4(d) says that "every public authority should provide reasons for its administrative or quasi judicial decisions", the ruling by High Court, quotes the Definition of 'Information' and goes on to argue that Such reasons do not constitute information. However if the High Court had stopped at that, it would have been ok. Instead the judge has proclaimed that "The definition cannot include within its fold answers to the question “why” which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly classified as information."

 

This has thrown into wind the very essence of the RTI Act. Now we cant even argue before the SIC that Section 4(d) was not followed by the PIO, since the reply would be that the PIO was merely obeying the Delhi High Court decision!

 

Matters can only be solved if the decision is reviewed. Why arent RTI Activist lawyers coming forward to do this?

 

Dr Joel G Mathew.

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joelgm
I think that the case is not presented correctly before the High Court. The High Court cannot rule out Section 4(1)(d) of the RTI Act in cases the information on the reasons is "Held" by the public authority.

 

The problem is that the term "information" as defined by the RTI Act does not include reasons. And if reasons are not information, how can they come under the purview of the RTI Act. That seems to be contention here.

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Dr V S Prasanna Rajan

I hereby provide a judgment of the supreme court which held that - NO JUDGMENT OF ANY COURT INCLUDING THE SUPREME COURT SHOULD BE INTERPRETED SO AS TO NULLIFY THE EXPRESS PROVISIONS OF ANY ACT OR CODE".

 

Hence, based on this judgment of the judgment of the High court of bombay is interpreted, it would convey that THE COURT DID NOT INTEND TO NULLIFY SECTION 4(1)D OF THE RTI ACT.

 

MOREOVER, THE DOPT WHICH ISSUED THE CIRCULAR SHOULD PROVIDE APPROPRIATE CLARIFICATION , WHICH IS IN CONSONANCE OF THE AFORECITED JUDGMENT OF THE SUPREME COURT, SO AS TO AVOID ANY CONFUSION REGARDING SECTION 4(1)D OF THE RTI ACT.

 

vsprajan.

No decision by any court including the apex Court can be read in a manner as to nullify the expr.pdf

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munirathnam

I see in the Judgement that PIO can not give reasons unless those were part of the document lies with him. Also the reasons are not part of the section 2(f) of RTI Act.

 

Whereas the reasons on any decision shall be disclosed even by the Judges why passing the orders.... that is the fundamental definition of the Judgment... else how people can under any decision ....?

 

The reasons for the affected people are necessary to disclose under RTI act.... only this way enable the citizens to understnad and realise whether the decision can be challenged or not.

 

 

I seriously thinking what cirumstances the parties of the case failed to point the section 4(1)(d) of RTI Act and the meaningof the Speaking Orders in the judgement terminology ...

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munirathnam

Dear Vsprajan,

 

I appreciate your effort in placeing the right judgement in the foram.... but could I say that Bombay & Goa High Court simply failed to consider the provision of the Act while deciding the matter and The High Court did not nullify the provision (section 4(1)(d)) of the RTI Act.

 

If High Court would have passed the order saying that section 4(1)(d) of RTI Act is meaningless then we could say that HC has no power to alter the Act or Law provision being it can be done by the Parlament only.

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