Skip to main content

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

Comments

TRENDING

Constitution day makes us remember and rethink the values that India stands for

By Dr. Kapilendra Das*  India, also known as Bharat, was liberated from British rule and gained Independence on August 15, 1947. So every year on 15th August we celebrate Independence Day throughout the country. The Indians felt the taste of freedom, but there were no rules and regulations to govern the country for which British rules were effective up to January 25, 1950. To govern India, the draft constitution was prepared by the Drafting Committee which was published in January 1948, and the same was finally adopted by the Constituent Assembly on 26 November 1949, the day of an important landmark in India’s journey as an independent, Sovereign, Socialist, Secular, Democratic, Republic. The constitution so adopted came into force on 26 January 1950. To memorize 26 January, every year we observe Republic Day throughout India. To mark rethinking and remembrance of the day of adoption of the constitution of India, 26 November has been celebrating as “Constituti

Seventh most vulnerable nation, effects of climate change can be seen in Bangladesh

Mashrur Siddique Bhuiyan*  From November 6–18, 2022, Sharm el-Sheikh, Egypt is hosting the 27th Conference of Parties (COP27) of the United Nations Framework Convention on Climate Change. This two-week climate conference is critical for the globe because it occurs at a time when nations are coping with a global energy crisis, the conflict in Ukraine, rising inflation rates, and dwindling funding for climate adaptation. It also has great significance for Bangladesh, as the country's ability to maintain its economic growth depends on raising the necessary finances for urgent climate action and mitigation. This year’s theme is "Delivering for People and the Planet," which aims to hasten global climate action by lowering greenhouse gas emissions, fostering resilience and preparing for climate change's unavoidable effects, and increasing the flow of climate finance to developing nations. The goals of COP27 are based on the outcomes of COP21, which was held in Paris in 2015

Unsung, tens of Morbi youth of local fishing community saved many, many lives

By Rajiv Shah  It was indeed a treat to listen to Bhavik Raja, who spoke at a meeting of the Movement for Secular Democracy the other day in Ahmedabad. Speaking in chaste Gujarati, Raja recalled his childhood days in Mobi when he and his friends would often go to the town's Jhulto Pul (Hanging Bridge) in free time. I listened to him online. The bridge, which should have been given a heritage status, was handed over to the owners of a watch-making tycoon for repair. The repair was carried out so shoddily that it broke down in less than a week after it was opened for general public, leading to the death of more than 140 persons, many of them children. Raja, who formed a group of three-person activists' team on a fact-finding mission to Mobi, said, what isn't taken note of is how tens of youth, belonging to the local Muslim fishing community, jumped into the river and saved many, many lives. It's a marshy river, and to navigate in there is an extremely difficult exercise.

Zakir Naik tumult, Catholic Church power abuse: will Anwar Ibrahim save Malaysia?

Anwar Ibrahim By Jay Ihsan*  Anwar Ibrahim, a hardcore reformist who took a punch to his eye in 1998 from then inspector-general of police, Rahim Noor, has finally been given the mandate by Malaysians to serve as the nation's 10th prime minister. Anwar knows too well the burden of staying true to both trust and faith the people have in him requires every once of commitment and dedication. The question is will he be apologetic for his transgressions enroute to "rebuilding" Malaysia? In his overzealousness to get the job done, Anwar, 75, needs to safeguard every bit of gumption to address prickling issues plaguing the safety of the nation especially those involving communal sensitivities. For one, dare Anwar get rid of terrorist hate preacher and fugitive Zakir Naik for inciting religious unrest in Malaysia? In November 2016, India’s counter-terrorism agency filed an official complaint against Naik, holding him responsible for promoting religious hatred and unlawful activi

Ukraine war revitalizes silent competition between China and Russia in Central Asia

By John P. Ruehl  At the recent Commonwealth for Independent States (CIS) summit held on October 14 in Astana, Kazakhstan, Tajik President Emomali Rahmon expressed previously inconceivable remarks. His public admonishment of Russian President Vladimir Putin to treat Central Asian states with more respect showed the growing confidence of Central Asian leaders amid Russia’s embroilment in Ukraine and China’s expanding regional influence. After coming under Russian imperial rule in the 18th and 19th centuries , five Central Asian states—Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan— emerged independent from the Soviet Union in 1991. While these countries remained heavily dependent on Russia for security, economic, and diplomatic support, China saw an opportunity in their vast resources and potential to facilitate trade across Eurasia. Chinese-backed development and commerce increased after the Soviet collapse and expanded further after the launch of China’s Belt an

Adequate attention not paid on changing human life to realize climate change aim

By Bharat Dogra  Climate change is one of the biggest challenges of our times. It has to be checked as a matter of highest priority. Despite this adequate attention has not been given to how human life must change to realize this objective. We know that fossil fuels must be phased out and replaced by renewable energy. But is renewable energy capable of meeting the present day massive energy requirements, along with the increase taking place? Even if it is, what are the implications if renewable energy has to be scaled up to this level, and at such gigantic level won’t renewable energy also have very adverse consequences, although of a different kind? Such questions make the situation more complicated, but these have to be faced. So let us try to approach the issue in a somewhat different way. Since the daily consumption of various goods and utilities involves the use of fossil fuels in various ways, if all excessive, wasteful and harmful consumption can be given up, this will also lead

Integrating biodiversity for poverty removal still not binding for this UN body

Reacting to a statement of the executive secretary of the Convention on Biological Diversity ( CBD ), United Nations, Elizabeth Maruma Mrema, on the occasion of the International Day for the Eradication of Poverty, which fell on October 17, well-known Thiruvananthapuram-based ecologist S Faizi has objected to the CBD’s plan for “effective integration of biodiversity for poverty eradication”. *** I compliment you for issuing this statement . However, I am disappointed to see that the CBD COP's output on poverty and biodiversity, namely the Chennai Guidance is not even referred to in your statement, particularly so since the 12th COP has asked the Executive Secretary to "continue the work requested by the Conference of the Parties in decisions X/6 and XI/22, for the effective integration of biodiversity for poverty eradication and development, taking into account also the related decisions of the Conference of the Parties at its twelfth meeting" and to promote the Chennai

Much like earlier meetings, COP 27 fails to find real solution to overcome climate crisis

By NS Venkataraman* COP 27 in Egypt was organized with much fanfare and expectations, similar to COP 26 at Glasgow that was organised in 2021. While nothing significant was achieved in combating the climate crisis subsequent to the Glasgow Meet, one thought that COP 27 would be more productive and would find some real solutions to overcome the climate crisis. Leaders and representatives from most of the countries participated in the COP 27 including the President of USA, Prime Minister of UK and so many others. Cosmetic speeches were made by the leaders, committing themselves to save the world from global warming and noxious emissions. Finally, resolutions would be adopted after representatives of all countries put their heads together . With no tangible agreement about the fundamental issues, the resolutions would inevitably end up as face saving documents. During COP 27, the UAE President clearly said that the UAE would not reduce production of crude oil and natural gas. In t

Bangladesh to import diesel from India: Win-win situation amidst economic turmoil?

Kamal Uddin Mazumder*  Bangladesh and India had been sharing friendly and warm relations since 1971. Both of the countries have been kith and kin through crisis moments. Bangladesh has witnessed India’s support from the liberation war to the Covid-19 pandemic. As now the world is facing the repercussions of the pandemic and the Russia-Ukraine war through the economic crisis and the energy crisis, India is still with Bangladesh through a cooperative framework. The government of Bangladesh had decided to cut down its fuel consumption to keep up with the global energy crisis. It was necessary to import fuel at the cheapest possible rate to mitigate the crisis. Some talks had been initiated with countries like Saudi Arabia, Malaysia, and Brunei but India came forward first. The geographical proximity and the longest shared border had ushered multidimensional ways of cooperation and collaboration in many areas. The import of diesel from India through the pipeline is one of the prime example

Maldives migrants' death: Govt bodies haven't done enough for workers' safety, security

By Kirity Roy*  We have been notified by the media that a hazardous fire, which erupted in a cramped neighborhood of Maldivian capital Male, has killed 10 migrant workers including 9 Indians. We are much aggrieved by this incident, and sending our heartfelt condolences to the families of the victims. Many are missing. Almost half the population in the Maldivian capital constitutes of migrant workers, and out of them many are Indians. During the COVID-19 pandemic it was reported by many media outlets that due to the cramped and unsuitable living conditions, the disease spread more rapidly among the foreign workers than anywhere else in the country. This brought the light upon the serious housing problem for the migrant workers in the country. The current incident shows that the Government bodies have not done enough to ensure safety and security for the workers. While the United Nations have established the rights of the Migrant workers through the International Convention on the Prot