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Courts taking on role of Parliament by barring access to judicial records under RTI

By Venkatesh Nayak*
The RTI fraternity is abuzz with heated discussions around the recent judgment of the Madras High Court holding that a citizen must explain his/her reasons for seeking information under the Right to Information Act, 2005 (RTI Act) . Whether the Court wanted this norm to apply to people seeking information from its Registry or from all public authorities covered by the RTI Act is not clear. However, the Court’s Cause List for 23rd September listed this matter for suo motu review by the Court. I thank renowned RTI activist C J Karira for alerting me to this development. There are news reports today that some offending portions of the judgment have been deleted. However the Court’s website continues to display the text of the 17th September judgment without any changes (1st attachment). This is not an isolated trend. The Registry of the Madras High Court has been curtailing the transparency regime bit by bit.

Madras High Court amended RTI Fee Rules in a retrograde manner

In April this year the Registrar General of the Madras High Court caused a Gazette notification to be issued, informing the people that the Rules for prescribing fee for supply of information had been amended (2nd attachment). Readers may recollect that the Chief Justice of every High Court is the competent authority to make Rules for implementing the RTI Act within the jurisdiction of that High Court. These Rules were required to be notified within 120 days of the enforcement of the RTI Act. i.e., by 12th October. The Madras High Court Right to Information (Fee and Cost Regulation) Rules were made in 2007 they were notified in May 2008 – three years and nine days after Parliament passed the RTI Act (see: http://www.hcmadras.tn.nic.in/rtia.pdf). Rule 4 covered only copies of judgments, orders, statements and reports generated by the Court including its Bench at Madurai. There was no mention of the charges applicable for seeking other kinds of information generated by the administrative side of the Court. Rule 4 also made it compulsory for an applicant to submit a lump sum of Rs. 100/- along with the application fee of Rs. 10 towards cost of providing the information. The Public Information Officer was empowered to collect more money if the costs exceeded Rs 100.
The April 2014 amendment extends Rule 4 to all kinds of information generated by the administrative side of the High Court. Now the requirement of paying Rs. 100 towards cost of supplying information is made applicable to all information generated by the administrative side of the court. The Public Information Officer may charge additional fee if the cost exceeds Rs. 100. However a citizen is barred from seeking information about the judicial side of the Court under the RTI Act. The amended Rule states that requests for copies of judicial records must be made under Madras High Court Original Side Rules and the Madras High Court Appellate Side Rules and fees chargeable under those Rules will apply to requests for all copies of judicial records including judgments orders, decree and other related documents.

An assessment of the amendment

The Madras High Court Appellate Side Rules were amended in 2010 in a positive manner. Thanks to this amendment any person who is a stranger to a case before or decided by the Court could seek copies of all judicial records without having to file an affidavit justifying why he/she wanted the information (Order XII, Rules 3). However the Madras High Court Original Side Rules continue to require a stranger to a case to submit an affidavit explaining why he/she wants the information to the satisfaction of the Court (Order X, Rule 3). So when read with the RTI Rules amended in April 2014 the following scheme of access to information emerges:
1) While the amended RTI Rules will cover the information held by the administrative side of the Court, the applicant has to pay Rs. 100 even if the information he/she seeks is less than 10 pages long. This is a complete violation of Section 7(3) of the RTI Act which states that additional fee will be charged only on the basis of actual calculation of the cost of reproducing the information (photocopies or electronic copies). The Central Information Commission (CIC) ruled on this matter in October 2009 stating that only copying charges may be collected under Section 7(3) and no other charges may be imposed on an applicant (3rd attachment). The amended Rules are clearly in violation of the letter and spirit of the RTI Act and it must be said with the greatest respect to the wisdom of the Madras High Court, that they may amount to abuse of the rule-making power. Section 28(1) of the RTI Act clearly says that Rules may be made by the competent authority to carry out its provisions. Conversely, Rules must not be made in a manner that frustrates the very scheme and intention of the RTI Act.
2) By prohibiting the citizen from seeking information about judicial records under the RTI Act, the Madras High Court has in fact created a new exemption to disclosure without having the competence to do so. The definition of the term ‘information’ in Section 2(f) does not carve out an exception for judicial records. So judicial records are very much a part of the information held in material form by the Court or its Registry. Nor is there any exemption elsewhere in the RTI Act that empowers any authority to completely insulate any category of records from the RTI Act.
Further, if the Rules remain unchallenged a decision of the Registrar in refusing access to copies of judicial records cannot be appealed before the State Information Commission (or the Central Information Commission – because even the CIC has been hearing 2nd appeal cases against High courts under the RTI Act). Also, penalty cannot be imposed for denying access to information without food reason under the RTI Act. So the Registrar of the Madras High Court will be the final arbiter whether to provide access to copies of judicial records or not and can escape any penalty for unreasonably refusing access to copies of judicial records. This is not the intention of Parliament at all when it laid down the contours of the transparency regime through the RTI Act.
3) When a stranger to a case seeks information contained in judicial records generated under the Original Jurisdiction (and not Appellate Jurisdiction) of the Madras High Court, he/she is required to explain the reasons for seeking the information. This is a clear contravention of Section 6(2) of the RTI Act which prohibits a public authority from demanding from an RTI applicant his/her reasons for seeking information. So when two options are available for a citizen – namely the Court’s own Rules and the RTI Act, why should a citizen not choose an option he/she most prefers? As the guardian of people’s fundamental right to free speech and expression under Art. 19(1)(a) of the Constitution, can the Madras High Court insist that a request for information be made only under their Rules and not under RTI? This in my humble opinion amounts to restricting the freedom of a citizen to freely express his choice of seeking information through the route that he/she finds most convenient.
Many lawyers and experts argue that court records are public records and any person may access them upon making a simple application with court fee stamp attached (without any knowledge of how much fees is required to be paid). The Supreme Court also says so when strangers to a case seek information about judicial records it holds, they must do so under the Court Rules and not under the RTI Act. In June 2014 I sought copies of interim reports submitted to the Apex Court by a committee appointed by the Court to assist in the sex-workers rehabilitation matter. I am still waiting for a reply after three months.
More importantly, the Supreme Court ruled in the matter of Central Board of Education and Anr. vs. Aditya Bandopadhyaya and Ors [(2011) 8SCC497] that by virtue of Section 22, the RTI Act prevails over all other laws, byelaws and Rules. A Division Bench of the Rajasthan High Court followed this ratio in Alka Matoria vs Maharaja Ganga Singh University and Ors. [AIR 2013 Raj1 26] in 2012 and struck down the Respondent University’s Rule charging Rs. 1000 per page for allowing inspection of a student’s evaluated answer book. More recently, in the matter of Paras Jain vs Institute of Company Secretaries of India [LPA 275/2014], a Division Bench of the Delhi High Court quashed the Respondent’s guidelines charging Rs. 500 for giving a copy of the answer book to an examinee. In both Rajasthan and Delhi the High Courts ruled that RTI Fee rules must be applicable when a request for information is made under the RTI Act.
So the ratio laid down by these two High Courts is very clear. No rules, byelaws or guidelines may contravene the RTI Act or RTI Rules. If a request for information is made under the RTI Act, RTI fee Rules and the prescribed Rates should apply. It is not open for any Court to bar access to judicial records as that would amount to taking on the role of Parliament to create additional exemptions. Such principles must apply not only to other public authorities, but also to the Courts’ own Registries. If a different principle is held to be applicable that would amount to arbitrariness and a violation of Article 14 and the concept of rule of law that underpins our democratic polity.
Lastly, the amended Rules say, “The Chief Justice is pleased to make the following amendments…” This implies that the Chief Justice had applied his mind to the proposal for amending the RTI Rules before approving it. If that is indeed the case, the Registry of the Madras High Court has a duty under Sections 4(1)(c) and (d) of the RTI Act to give reasons for these decisions and place all facts and figures including file notings that form the basis of these amendments. Merely deleting a portion from the September 17th judgment, will not rectify the situation as far as people’s access to records from the Madras High Court are concerned. Those Rules will have to be amended in tune with the letter and the spirit of the RTI Act.
Denying the convenience created by Parliament to citizens for seeking information is like the priest denying what the deity grants — no offence meant to the dignity of the wisdom of any Court.

*Programme coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi

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