Tuesday, May 24, 2011

SC vs. CIC: Does SC have a case?

The Supreme Court has gone to the High Court again, appealing against a CIC order. If it was about the declaration of assets earlier, this time it is to assert the primacy of the Supreme Court Rules over the RTI Act.

The main issue at hand is whether the non-obstante clause in Section 22 of the RTI Act, 2005, overrides the Supreme Court Rules. According to the statutory provision in question, the provisions of the RTI Act are to have effect “notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

Order XII, Rule 2 states that the Supreme Court may provide all documents, records and pleadings associated with a case to anyone who was not a party to the case if good cause is shown for seeking this information and prescribed procedure (including payment of prescribed fees) is duly followed.

Both provisions have been put in place to facilitate transparency and in that sense, are not inherently inconsistent with each other. But there are some crucial differences. Unlike the Supreme Court Rules, the RTI Act provides for a time limit within which such information is sought, offers no discretion if the information in question is covered by the Act and does not require the party to state any reason at all for seeking this information. A system of differential pricing is followed with respect to the payment of fees under the RTI Act.

The CIC has held that since both provisions are two ways of achieving the same end, there is no inconsistency of the sort covered by Section 22 and it is therefore open to the parties to seek information through whatever channel they use. Such an inconsistency does emerge when information is to be mandatorily made available to an applicant under the RTI Act, but is denied to him or her under the Supreme Court Rules. In such a situation, the RTI Act trumps the Supreme Court Rules since Section 22 is then operationalized. Any other interpretation would be a violation of the right to information that has been recognized as a fundamental right by the Supreme Court.

In coming to this conclusion, the CIC discussed two important maxims. The first of these is - lex posterior derogat priori - non est novum ut priores
lages ad posteriores trahantur
- which means that an earlier Act must give way to a later one, if the two cannot be reconciled. The CIC held that this was to be done in only those rare situations where no harmonious construction of the two was possible. Thus, both provisions were recognized as valid modes of obtaining information unless there was an obvious conflict of the sort described above.

The other maxim discussed generalia specialibus non derogant(i.e., general things do not derogate from special things) was similarly dealt with. The CIC held that the general provisions of the RTI Act would not take away from the SC Rules unless there was a stark inconsistency between the two that led to an inability to apply this maxim.

The SC has approached the High Court challenging such a construction.
Apart from the grounds that have already been dealt with by the CIC, a fresh ground of appeal seems to be that the SC Rules are framed under the direct authority of the Constitution and should therefore trump the RTI Act This argument must necessarily fail. The SC Rules have been framed under the authority of Article 145 of the Constitution and are “[s]ubject to the provisions of any law made by Parliament.” The interpretation given by the CIC seems to be sound in law and is unlikely to be overturned.

However, the related issue of the kind of information sought, rather than the mode of information might be well worth exploring. The information sought by the applicant extended to “reasons for judicial decisions.” Arguably, the requirement that all decisions must be reasoned decisions has already found its way into the corpus of principles of natural justice, and there is little to be gained by allowing applications demanding reasons beyond those that have already been furnished. In that sense, these applications would largely be superfluous, and would unnecessarily consume time and resources.


Moreover, Section 4(1)(d) of the RTI Act, explicitly mentions that the ambit of the Act extends to reasons for all administrative and quasi-judicial decisions. Had the Legislature wanted to include judicial decisions, nothing would have been easier than to mention that in the said provision. The Legislative intent was clearly to exclude judicial decisions from the ambit of the RTI Act.

[Contributed by Arushi Garg]
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