Top
Begin typing your search above and press return to search.
Articles

Stare Decisis Stares: Many Questions Than Answers In Delhi High Court Judgement Of 'Har Kishan Vs. President Secretariatt' W.P. (C) 7976/2020?

Mohit Kumar Gupta
13 April 2021 9:52 AM GMT
Stare Decisis Stares: Many Questions Than Answers In Delhi High Court Judgement Of Har Kishan Vs. President Secretariatt W.P. (C) 7976/2020?
x

The Right to Information bleeds now with a requirement being added by a judicial order much beyond the original scheme of the Act and that is, 'Disclosure of Interest in Personal Information sought under the RTI Act would be necessary'. Fortunately, the scope of the said decision in terms of the requirement to disclose interest in any information being sought under the RTI Act, has been corrected by the Hon'ble High Court in its order dated 29.01.2021, interestingly yet again, it could not be set right at all. We have now been put at cross roads, when the issue which was already settled and clear with the statutory provisions and decision of the Hon'ble Supreme Court of India in terms of requirement to disclose reasons in seeking information and that is how the stare decisis stares sharply at a change being incorporated as a new amendment being carried out in the Act through a subordinate judicial order.

The history helps to unfold the tread marks and a bare look at the long title and preamble of the Right to Information Act, 2005 would thereby provide some clarity about the need, the citizens were earnestly wishing for, without being compelled to possess a reason and/or to provide a reason to create an informed citizenry in the democratic Republic:

"An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.

WHEREAS the Constitution of India has established democratic Republic;

AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;

AND WHEREAS …………………………….

AND WHEREAS ………………………………..

NOW, THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it."

  • emphasis supplied

The Hon'ble Supreme Court of India in the landmark case of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal Civil Appeal Nos. 10044 of 2010, 10045 of 2010 and 2683 of 2010 decided on 13 November, 2019 too held the following in majority:

"The last aspect in the context of public interest test would be in the form of clarification as to the effect of sub-section (2) to Section 6 of the RTI Act which does not require the information seeker to give any reason for making a request for the information. Clearly, 'motive' and 'purpose' for making the request for information is irrelevant, and being extraneous cannot be a ground for refusing the information……."

  • emphasis supplied

Hon'ble Mr. Justice D. Y. Chardachud too exemplified the true import of sub-section (2) of Section 6 of the RTI Act, in the above dissenting judgement by stating that:

"….Clause (2) of Section 6 of the RTI Act provides that an information applicant need not provide any reason as to why the information is sought. It would not be open for an Information Officer to deny the disclosure of information on the ground that the information would lead to confusion, embarrassment or unnecessary debate in the public sphere…"

  • emphasis supplied

But what exactly is the sub-section (2) of Section 6 of the RTI Act, can be understood from a plain reading and non-intelligible understanding of the provision and accordingly the same is reproduced herein below for ready reference:

"(2) An applicant making request for information shall not be required to give any reason for requesting the information or any other personal details except those that may be necessary for contacting him."

  • emphasis supplied

Now, one should look into the specific story of the case in a nutshell, though the facts could be detailed and messy. A father whose daughter does not get selected for the MTS post in President Secretariat of India, on account of alleged irregularities being committed, files complaints, gets an enquiry committed appointed the Hon'ble High Court, paves the route of information transparency under RTI Act and further reaches to the rescue of the Hon'ble High Court challenging the decision of the Hon'ble Central Information Commission, but dismally with costs to remember. 'Why would somebody approach a court of law if everything was alright and what really went wrong?' formed the basis of study of the decisions passed by both the above mentioned forums, and would possibly create a sense of uneasiness in comprehending of the following questions framed, which are found not dealt in, anyhow.

QUESTIONS OF LAW AND/OR FACTS

{arising out of decisions dated 12.01.2021 and 29.01.2021 passed by the Hon'ble High Court of Delhi in the matter of 'Har Kishan vs. President Secretariatt Through its Secretary and Anr. W.P. (C) 7976/2020' against the decision dated 17.07.2020 passed by the Hon'ble Central Information Commission in the matter of 'Harkishan vs. CPIO & Dy. Secretary, President Secretariat CIC/PRSEC/A/2018/168355'}

  1. Whether the Central Information Commission has given any finding of facts and/or reasoning, whether legal or otherwise, aligned in terms of statutory provisions or in terms of applicability of judicial precedents to the facts of the case, while disposing the matter as a second appeal in a binding decision passed under sub-section (7) of Section 19 of the Right to Information Act, 2005 (as amended from time to time and as in force)?
  2. Whether the Central Information Commission has given any decision qua point no. 6 of the RTI Application i.e. regarding the complete residential address and the father's name of all the selected candidates who have been appointed to the post of Multi Tasking staff vide Notification circular No. 4-35011/7/16-Adm, wherein clause (j) of sub-section (1) of Section 8 of the Right to Information Act, 2005 was invoked by the Central Public Information Officer?
  3. If the answer to the question in point no. 2 is No, whether the said decision passed by the Central Information Commission, being a partly disposed of matter, can be reviewed by the commission itself suo-moto or an application being filed by any party to such proceedings?
  4. Whether the Central Information Commission materially erred in passing a cryptic and wrongful decision by asking the First Appellate Authority of the respondent public authority to exercise due diligence while directing to furnish information in accordance with the Right to Information Act, 2005?
  5. Whether the Central Information Commission has any jurisdiction to ensure compliance of its decision in accordance with the provisions of the Right to Information Act, 2005 through the First Appellate Authority of the respondent public authority, when and where the sole responsibility and ensuing penal consequences lie upon the Public Information Officer(s) as provided for under Section 20 of the Act?
  6. Whether the Central Information Commission while considering the second appeal filed under Section 19 of the Right to Information Act, 2005, should remand back the case for consideration and hearing as a usual course by the First Appellate Authority, where the First Appeal is found to have not been decided at all or have otherwise been decided improperly/wrongly, and the appellant does not pray otherwise? Whether the Central Information Commission has any power, explicit or inherent, to remand the case to the First Appellate Authority as such?
  7. Whether the appeal, being the first appeal provided for under sub-section (1) of Section 19 of the Right to Information Act, 2005 is an empty formality in light of no direct jurisdictional supervisory and/or penal powers of the Central Information Commission over/against the First Appellate Authority of the respondent public authority and whether the applicant concerned can directly approach the Commission bypassing the remedy of such first appeal?
  8. Whether the respondent Public Information Officer(s) can only justify denial of information under sub-section (5) of section 19 of the Right to Information Act, 2005, only when the denial was made in accordance with the provisions of the Act and was not a default denial under sub-section (2) of section 7 of the Act?
  9. Whether the respondent Public Information Officer(s) in compliance with sub-section (8) of section 7 of the Right to Information Act, 2005, has to give reasons alongside invoking specific section(s) of the Act, while rejecting the request for information within the mandatory period applicable or provided for under sub-section (1) of section (7) of the Act?
  10. Whether the High Court of Delhi has erred in clarifying or otherwise concluding the difference in instances, requiring material disclosures in the writ petition filed as against the disclosure of interest in the personal information sought through the application made under the Right to Information Act, 2005, particularly in light of imposition of costs upon the petitioner?
  11. Whether the provision of reasons in the application made under the Right to Information Act, 2005 pertaining to personal information of third party, stands in teeth with sub-section (2) of Section 6 of the Right to Information Act, 2005?
  12. Whether the applicant has to disclose the existence of public interest or larger public interest in the application filed under the Right to Information Act, 2005 or can the same be argued at further stages of first and/or second appeal provided for under the Act?
  13. Did the High Court of Delhi decide as to whether father's name and/or residential address of the candidates selected to the public posts constitute information of a personal nature and exempted under wherein clause (j) of sub-section (1) of Section 8 of the Right to Information Act, 2005 causing unwarranted invasion of privacy of the individual?
  14. Whether the information which is a personal information, the disclosure of which has relationship to any public activity or interest but which would cause an unwarranted invasion of privacy of the individual stands exempted vide clause (j) of sub-section (1) of Section 8 of the Right to Information Act, 2005?
  15. What is the meaning of the term 'the individual' provided for in clause (j) of sub-section (1) of Section 8 of the Right to Information Act, 2005?
  16. How shall the dynamics of exemption mentioned in clause (j) of sub-section (1) of Section 8 of the Right to Information Act, 2005 work as depicted in the table?

S. No.

Right to Information Act, 2005

I

II

III

IV

1.

Section 8(1)(j)

Personal Information

Yes

Yes

Yes

Yes

2.

Relationship to any public activity

Yes

Yes

No

No

Relationship to any public interest

3.

Unwarranted invasion of the privacy of the individual

Yes

No

Yes

No

-

Exemption

4.

Larger public interest

Yes

Yes

Yes

Yes

-

Exemption

5.

Section 8(1)

Information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

Yes

Yes

Yes

Yes

-

Exemption

6.

Section 8(2)

Public interest in disclosure outweighs the harm to the protected interests

Yes

Yes

Yes

Yes

-

Exemption

It cannot be doubted that just qualifying the disclosure of interest to be made only in respect of seeking personal information is troublesome, but as to why the doctrine of stare decisis not being followed by the Hon'ble High Court sets the ball rolling for abuse to be inflicted by authorities in denying the rightful information using the same as precedent invariably. Logically as against legally, many questions would find a different answer than the judgement and it goes against the basic understanding that logic precedes law. Whether or not the said decision is per incuriam, might be the topic for the legal eagles to fight in the Hon'ble Courts, but the common man of this country has lost a big battle without being fought and punished for reasons unknown.

Before parting with it, following judgments would help the cause of understanding the relevance of binding precedent and per incuriam and the path-breaking scenario created by a judicial order very much before the advent of the RTI law, the relevant extract from the same being reproduced herein below:

Union of India Vs. Raghubir Singh (AIR 1989 SC 1933)

"…….The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transaction forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court…."

  • emphasis supplied

State of Bihar Vs. Kalika Kuer alias Kalika Singh & others (2003) 5 SCC 448

"A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of House of Lords decision, in which case it must follow that decisions; or when the decision is given in ignorance of the terms of a statute or rule having statutory force."

  • emphasis supplied

Dinesh Trivedi, M.P. and Ors. Vs. Union of India (UOI) and Ors. (1997) 4 SCC 306

"18. The case of S.P. Gupta v. Union of India MANU/SC/0080/1981 : [1982] 2 SCR 365, decided by a seven-Judge Constitution Bench of this Court, is generally considered as having broken new ground and having added a fresh, liberal dimension to the need for increased disclosure in matters relating to public affairs, In that case, the consensus that emerged amongst the Judges was that in regard to the functioning of government, disclosure of information must be the ordinary rule while secrecy must be an exception, justifiable only when it is demanded by the requirement of public interest…..

19. What then is the test? To ensure the continued participation of the people in the democratic process, they must be kept informed of the vital decisions taken by the Government and the basis thereof. Democracy, therefore, expects openness and openness is a concomitant of a free society. Sunlight is the best disinfectant…."

  • emphasis supplied

The author is an advocate at High Court of Delhi and District Courts-Delhi NCR. He primarily practices in the areas of Access to Justice, Access to Information (RTI), Criminal Laws, Child Rights, Education and Consumer Laws and engages in public policy matters. He can be reached at [email protected]. Views are personal.


Next Story
Share it