September 27, 2020
The Journey of Right to Information [“RTI”] traces struggle, due to the dichotomy between the foundational differentiation of private right and public interest. Imperatively, Public Interest lies in the freedom of discussion, which necessitates that the members of a democratic society are sufficiently informed about the things which affect their lives. Interestingly, RTI is a preambular right which emanates from liberty of thought and expression to all the citizens under the Constitution of India and is read under Art. 19(1)(a).
The recent decision of the Supreme Court in Chief Information Commissioner v. High Court of Gujarat, restrained the citizens from obtaining Court records under the RTI Act and undergirded the applicability of the Gujarat High Court Rules over RTI. Generally, a person has two mechanisms to avail judgments and orders from the court; one under RTI and other under the respective High Courts [“HCs”] or Supreme Court [“SC”] rules. RTI Act allows any citizen to acquire information pertaining to case records and judgments subject to the provision of the Act.[1] Conversely, the HC rules requiring the satisfaction of competent authority mandates people to disclose the reasons for accessing such records.[2] Interestingly, the records are only furnished when the authority perusing the reasons is satisfied. Thus, both RTI and HCs/SC Rules lay down different and contrary (as explained in the following paragraphs) procedures for obtaining the orders and judgments.After this case, people only have one mechanism to obtain judgments and court records (by adhering to HC and SC rules) because as per the SC the rule of precedence would only apply in case of ‘contravention’. However, the Court found no contravention between procedures of RTI Act and HC and SC rules.
The present article argues that such a narrow interpretation of ‘contravention between a general law and a special law’ logistically (by endorsing a complex procedure) impedes citizens from claiming information and operates in derogation to the objective of RTI. It also argues that the court obfuscates the legislative intention of giving unfettered access to judgments and other court orders as envisaged under Section 52(q) of the Copyright Act, 1957, which allows any person to access judgments with no satisfaction as additional requirements (unless barred by the court itself). It highlights the intention of the legislature to make the judgment available without any hindrance. The present article is an attempt to Constitutionally analyze the case in light of the government work under Copyright law. Further, the authors have shown how the reasoning of the court problematizes the objectives behind RTI Act and Copyright law.
Special Law vs General Law: Absence of Inconsistency?
In the present case, the issue arose when an applicant filed an RTI to avail the copy of information from the Court. The Public Information officer of Gujarat High Court rejected the application on the ground that the applicant should have approached the Court under Rule 151 of High Court Rules which prescribe some extra criteria (discussed in the following paragraphs) for obtaining information. Hence, the issue arose whether procurement of orders and judgments through the applicability of RTI Act would have an overriding effect by virtue of Section 22 over the rules formulated by the HCs and SC respectively. Section 22 is reproduced hereunder:
“Act to have an overriding effect.—The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 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.”
The court pondered upon Section 22 of RTI Act, a non-obstante clause and inconceivably negated the existence of any inconsistency between the procedures contemplated under the RTI Act and rules of the HCs. The court ruled that in the absence of inconsistency (between HCs/SC rules and RTI) the orders and judgments are to be mandatorily obtained under rules of HCs and SC. However, such interpretation appears problematic on the rule of interpretation in case of conflict between general and special law.
Notably, purport of RTI Act is to facilitate an effective and efficient mechanism for the accessibility of information from the Public Authority, thus it particularly caters to the need to informed citizenry. Whereas, the rules of HCs and SC concern a broad theme of the functioning and administration of courts, of which access to copy of documents is an offshoot.Hence, in line of the dicta of the court inR.S. Raghunath v. State of Karnataka,the procedure laid under RTI (a special law) would prevail over the rules (i.e. a general law). In this way, the court’s narrow interpretation of inconsistency restricts the applicability of RTI Act and undermines the intent of the legislators for incorporatingthe non-obstante clauseunderSection 22.
Moreover, relying on the Register, Supreme Court of India v. R.S. Misra, the court casually equated ‘transparency’ with the availability of alternative mechanisms and held that the presence of an alternate mechanism (Rules of HCs and SC) ipso facto confirms transparency, thereby denying the need of invoking RTI. In simple words, the Court has assumed that mere presence of an alternative mechanism for obtaining information is sufficient and RTI is of no use in that case. However, such assumption of the Court regarding two statutes dealing with the similar subject matter not only overlooks the ‘convenience’ aspect while obtaining information, which should be deciphered from the view point of the ‘applicant’, but also sidesteps the primary objective of RTI,i.e. is to ensure an expedient procedure of obtaining information. The Court has failed to appreciate that the availability of alternate mechanisms does not necessarily imply transparency, however, the methods of acquiring information are equally relevant to evaluate transparency.
Pertinently, under Section 6 Clause 1, the RTI Act delineates a simple mechanism for obtaining information by writing either through post or electronic medium requesting the Public Information Officer about the particulars of the information annexed with the payable fee. Such applications can only be rejected by the Public Information Officer on the grounds mentioned under Sections 8 and 9 of the Act. However, the rules of the HCs and SC necessitate the third party to manually submit an application along with the affidavit showcasing ‘good cause’ for acquiring the copy of orders and judgments. Notably, ‘good cause’ is nowhere defined in the Act, and the authority is not mandated to provide any reason for rejecting the request due to want of the good cause. Thus, subjective satisfaction of the authority becomes the sole reason for rejection. Further, the RTI Act allows ‘any person’ to seek information in accordance with the Act, whereas the rules of the HCs and SC allow ‘only parties to the case’ to such unimpeded access to judgments and creates extra filters for any other person outside the case.
Therefore, shutting the application of RTI on the judicial side not only makes the process of procurement of judgments and orders through HCs and SC more complex, but also creates further procedural and logistical constraints for the applicants. The stand point of evaluation as to whether the mechanism is effective or not must be from the perspective of an information seeker. This clearly warrants for a fairly simple and non-technical method as contemplated under the RTI Act. Such interpretation of the court overlooks the spirit of RTI which has been regarded as a facet of Article 21 of the Constitution. Further, India being a democratic nation where informed citizenry gains paramount importance, such pedantic interpretation problematizes the citizen’s fundamental right to know (a derivative of freedom of expression), to avail the best means of acquiring imparting and receiving information.The same can be understood from the Secretary, Ministry of Information and Broadcasting v. Cricket Assn. of Bengal, where the Court, while defining the right to impart and receive information as a specie of right of freedom of speech and expression, held that every citizen has a right to use the best means available for the purpose. Therefore, the Court ought to have considered the ‘best means available' while restricting the applicability of RTI Act.
Access to Government Work under Copyright Law: A way towards Informed Citizenry?
Copyright is a right given by the State over the intellectual creations of the authors and artists which provides certain economic and moral rights to the authors. In this way, it adds value to society in the form of a creative corpus which further enables people by unlocking new ideas. Interestingly, Section 2(k) defines Government Work as -
“a work which is made or published by or under the direction or control
(i) Xxx
(ii) Xxx
(iii) any court, tribunal or other judicial authority in India.”
Therefore, judgments, legislative acts, reports etc. are de jure government work and owned by the government. Conceptually, judgments are literary works for which the rights are mentioned inSection 14(a). However, unlike other works, judgments cannot be economically exploited by the government as they form a part of fair dealing provision as enumerated Section 52(q). In simple words, any person can use the judgment without any permission (unless it is explicitly barred by the court). Evidently, the legislature has deliberately made them subject to ‘no permission’ from the government and left them out for the public to use because they constitute an essential part of public discourse.
This can be analogized by Immanuel Kant’s argument of means-end, wherein both means and end are equally important. The Rationale behind not giving the exclusive rights on the government works especially on judgments can be emblematically called ‘means’ to achieve an ‘end’ i.e. an informed citizenry. It is to be noted that Section 52 is a crucial provision inserted in Copyright Act, 1957 to strike a balance between the public’s right to information/work and private right of owning intellectual property. Logistical hindrances as created in the present case obstructs the implementation of this provision (which creates a de facto right of the public because Section 52(q) secures the interest of public against private rights of copyright holders i.e. government in this case.) and creates an unnecessary impediment for people to access government work (i.e judgments and orders), thereby defying the ultimate objective of Section 52(1)(q)(iv).
In S. Khushboo v. Kanniammal&Anr., while epitomizing the significance of informed citizenry, the court observed that “the free flow of opinions and ideas is essential to sustain the collective life of the citizenry”. Further, India, being a country which follows a common law system, where judgments are christened as the binding source of law. This is called the principle of stare decisis, a rule of abiding by decisions or following recent adjudications. Therefore, it becomes more of an obligation on the courts that the judgments so rendered are widely published to secure compliance of the laws. Recently, in the case of KantaruRajeevaru v. Indian Young Lawyers Association, the court ordered the State to widely publish the judgment through television, newspaper etc., thus, highlighting the essence of making judgments accessible to the public. Similarly, in Union of India v. VanshSharad Gupta, the Delhi High Court held that the “public could be expected to follow the law only if the law is easily accessible ‘at the click of a button’ Also, in Sanjeev M. Gorwadkar&Anr. v. State of Maharashtra &Ors., the court remarked that it is quintessential for the citizen to know the set of laws, rules and regulations which govern his conduct. Given these cases and the significance of ‘informed’in Right to informtion, it becomes very important for the court to be cautious while interpreting and constructing the objective of RTI.
Conclusion
Access to information is an important aspect of a modern nation and becomes even more important when this information is the law. Given the litany of judgments showcasing the significance of access to law and information, the instant judgment of the court seems a little incognizant of the objective of Right to Information. In cases such as this where the fundamental right i.e. right to information of the citizens is at stake, the court is expected to adopt a more inclusive and thoughtful yardstick before limiting the right. The objective of incorporation of Section 52(1)(q) under the Copyright Act, 1957 highlights the importance of unimpeded access to judgments by the people and ensures the objective of having an informed citizenry. The present case should be viewed from the lens of accessibility of justice, the Constitutional Courts in India have been identified as Courts of Record, whereby the judgments delivered by them are binding on all lower courts in the form of precedents. Therefore, it becomes of paramount importance that the citizens affected by the ruling of the court ought to be made privy to the orders and Judgments of the Court.
[1] The Right to Information Act, 2005, No. 22, Acts of Parliament, 2005, §3.
[2]Supreme Court Rules, 2013, Gazette of India, pt. II sec. 3 R. (i), Order XIII rule 2; Gujarat High Court Rules, 1991 rule 151.
(Lokesh Vyas and Chitransh Sharma are fifth year students from the Institute of Law Nirma University.)
Well written. Kudos!
ReplyDelete5 minute well spent.
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