"Communication And Consultation Between Speaker Of Lok Sabha And Leader Of Opposition On Extension Of Tenure Of Secretary General Not Covered By Section 8(1)(c)Of The RTI": Delhi HC [Read Judgment]

Justice Anup Jairam Bhambhani of the Delhi High Court recently directed the Central Information Commission to give details on the communication and consultation between Leader of Opposition and Speaker of Lok Sabha about granting of a one year extension to the Secretary General, Lok Sabha Shri T.K Vishwanathan holding that such information was not protected by 'parliamentary privilege' under section 8(1)(c ) of the Right to Information Act, 2005.

The Court was hearing a petition challenging an order by the Central Information Commission in response to an application in 2011 made by the petitioner before the Central Public Information Officer, seeking response to 13 specific queries along with 2 omnibus queries related to extension of the tenure of the then Secretary General of the Lok Sabha, who was appointed on 1.10.2010 and granted extension of tenure w.e.f 31.08.2011 during the term of the 15th Lok Sabha. The queries arose from a news report titled "Spat brews as BJP opposes Speaker on LS official's term" dated 31.08.2011 published in the New Delhi edition of the Times of India‟ newspaper. The CPIO refrained from answering 3 queries pertaining to the objection of Smt. Sushma Swaraj to such appointment on grounds that the applicant had not sought any information as defined in section 2(f) of the Right to Information Act, 2005 and that communications and consultation by the Speaker of the Lok Sabha with the functionaries of the House such as the Leader of Opposition in the Lok Sabha in discharge of 'constitutional duties' may cause breach of parliamentary privilege due to which such information under section 8(1)(c ) of the RTI. In response to the other questions, a copy of the letter addressed by the Leader of the Opposition to the Speaker as well as file notings connected with the extension of the Secretary General's tenure were furnished to the petitioner.

The order was challenged in an appeal before the FAA i.e. the Joint Secretary, Lok Sabha Secretariat who dismissed such appeal. Thereafter, a second appeal was preferred by the petitioner before the CIC which directed that information sought be placed before the Speaker of Lok Sabha and in case the Secretariat claims privilege, it would clearly state the privileges as per Article 105 of the Constitution. Pursuant to such order, the Secretariat, on behalf of the Speaker, denied such information on the grounds of the exemption of 'parliamentary privilege' under section 8(1) (c ) of the Right to Information Act, 2005.

In the instant case before the High Court, the CIC order along with the order of the Secretariat was challenged.

While deciding the case, the Court considered the following issues:

"(i) Does „parliamentary privilege‟ as understood within the meaning of Article 105(3) of the Constitution of India apply to Queries Nos. 3, 8 and 9;

(ii) Does the inter se communication and consultation between the Leader of the Opposition, Leader of the House and the Speaker form part of „proceedings in Parliament‟ in relation to which parliamentary privilege may be claimed;

(iii) What are the boundaries and contours of the right to receive information under the RTI Act vis-a-vis a claim of parliamentary privilege;

(iv) Under the RTI Act who is the arbiter of whether a claim of 'parliamentary privilege' is tenable in relation to a given subject matter in the context of an RTI query; and

(v) Does the direction contained in CIC‟s order dated 20.02.2013, whereby it has been left to the Speaker to decide if „parliamentary privilege‟ is to be claimed in relation to the information sought, amount to abdication by the CIC of its role under the RTI Act ; or, putting it alternatively, does it amount to the CIC delegating its power under the RTI Act to the Speaker."

The Court while considering the issue of parliamentary privilege under Article 104 and 105, observed, that by virtue of Section 15 of the Constitution (44th Amendment) Act, 1978, since so far no law has been enacted by the Parliament to define its powers, privileges and immunities, these remain the same as of the House of Commons of the U.K Parliament where the position as decided by the U.K Supreme Court is that the areas where such privilege is sought must be so closely connected with the proceedings of the Parliament that intervention of the court would be inconsistent with the Parliament's sovereignty. Referring to a number of cases, the Court observed that Supreme Court on numerous cases had held that parliamentary privilege is to be exercised to safeguard the integrity of the legislative function against obstructions caused and breach of such privilege would arise if an act is directly connected with or bears proximity to the functions of a member as a legislator. Moreover, boundaries of parliamentary privilege had to be confined to activities of parliamentarians or activities in parliament that would justify the degree of immunity. The Court held that while freedom of speech was held by parliamentarians, such freedom pertained to their parliamentary or legislative function and not to speech in relation to any and every matter or subject. In the present case, no proceedings which would amount to questioning or impeaching the statements of the parliamentarians were contemplated and the information was sought merely as a matter of historical record. Since it was not a case where challenge was subsequently brought on the basis of privileged information relating to proceedings in the Parliament, it was held that information could not be denied on a suppositional or conjectural basis that if disclosed to the petitioner, a challenge may possibly be brought.

The Court next examined the scope of judicial review of claim to parliamentary privilege. With reference to Raja Ram Pal V. The Hon'ble Speaker, Lok Sabha & Ors, (2007) 3 SCC 184, it was observed that the Supreme Court on this issue had, without diluting the power of judicial review of constitutional courts with regards to such privilege, held that there would be always be an initial presumption that powers and privileges have been regularly and reasonably exercised by the legislature without violating constitutional provisions. Such presumption would be rebuttable as there is no foundation to the plea that a legislative body is beyond constitutional errors. From there, the High Court observed in this case, that the subject matter of queries was not 'any proceedings in Parliament' nor did it relate to the action of an officer or member for regulating procedure' or 'conduct of business' or 'maintaining order' in Parliament. Since the subject matter of the queries was the inter-se consultation and communication between certain parliamentarians, not undertaken in relation to their parliamentary or legislative function, the bar under Article 122 would also not be applicable. Furthermore it was also held, that in case of consultations within the meaning 'proceedings in parliament' would also be subject to judicial review if it affected fundamental rights, since only matters of procedural irregularity were excluded from judicial review.

Next, the Court considered the issue of role of the Speaker of the House, wherein it was observed that the Secretary-General functioning on behalf of the Speaker, heads the Secretariat being in charge of the administrative, secretarial and executive wing of the Lok Sabha. Since he is neither elected nor does he exercise any parliamentary function, he cannot be said to be a parliamentarian. The essential legislative functions of the speaker and even matters adjunct to parliamentary function of the such as, communications between a Member of Parliament and the Speaker in relation to any proceedings, debates, discussions, voting or other actions arising from or pertaining to the legislative function of such Member are protected by immunity so that such Member and the Speaker, are able to effectively discharge their duties. On the other hand, administrative duties, such as running of the Secretariat are separate and the Court in this vein observed that the Speaker does not engage in any legislative or parliamentary role such as moderating any parliamentary debate, or receiving any bills or motions tabled in the House etc. while performing such administrative duties which involves overseeing that the cadre provide all administrative, secretarial and executive support to enable the House to discharge its duties due to which parliamentary privilege would not apply to such administrative function as the same does not provide any overarching umbrella protection for all and any action of a parliamentarian. In this instant case, the privilege claimed was on a point of policy and not with reference to any particular or specific aspect of the consultation or communication in question. Speculating about whether the information sought would by interfering with the functioning of the members involved in the present matter, have sullied the sacred legislative process and may have contained material that "reflects poorly upon the Secretary-General, his eligibility, qualification or merit; or betray some political misgivings or disagreement in relation to the extension of his term.", the Court held that none of this would be "any stretch or contortion of reasoning or imagination, would have impeded the functioning of the House or hampered the proceedings or legislative function or any other core function of the House."

While examining the issue of the tenability of parliamentary privilege in context of RTI, the Court considered the interplay between the uncodified protection for legislative function of 'parliamentary privilege' enjoyed by the Parliament and the statutory right under RTI granted to citizens by Parliament itself. It was observed further that the purpose of RTI Act was to advance the fundamental rights under Articles 19(1) and 21 with reference to Anjali Bharadwaj V. Union of India (2019 SCC OnLine SC 205) and citizen's right to information emphasized in Section 3 of the RTI Act along with its Preamble. Observing that it was never the intention of the Parliament that Houses of Parliament or Legislative be excluded from the purview of the RTI Act completely, as evident from the non-inclusion of the same within section 24 of the RTI Act it was further held that section 2(e) of the Act was defined in relation to House of Parliament and State Legislative Assemblies though some information may be amenable to disclosure..

From such reading, the Court drew the following inferences:

(a) Houses of Parliament are not included in the organisations to which the RTI Act does not apply under section 24 of the RTI Act. (b) there is no blanket exemption from disclosure of information relating to Parliament save and except the specific exemption of parliamentary privilege available under section 8(1)(c) ; (c) information relating to Parliament is therefore exempt from disclosure only if it results in „breach of privilege‟; and (d) even information that is personal and information that may amount to invasion of privacy of an individual is liable to be disclosed provided such information has a relationship to some public activity or interest or disclosure thereof satisfies a larger public interest."

The Court in the present case, observed that the information sought had nothing to do with the Speaker's Parliamentarian function and had no connection with 'proceedings in Parliament'; and therefore parliamentary privilege cannot be claimed. Moreover, even if information sought by the petitioner fell within the category of personal information under section 8(1)(j), disclosure could not be denied since the Secretary General's role was in the nature of public activity. Furthermore the proviso to section 8(1) by stating that information cannot be denied to any person, if the same is available to the Parliament, disposed off any final doubts regarding the matter in the Court's view. Reiterating that 'parliamentary privilege' does not provide blanket protection, the Court held that the nature of the information did not enjoy any disclosure. Moreover, since the plea affected petitioner's statutory right to receive information as it was founded upon a fundamental right, the claim of privilege was amenable to judicial review by court. Thus the Court gave precedence to the statutory right of the petitioner over parliamentary privilege as the latter was to be construed so as to confine it to cases where it was necessary for preserving and protecting legislative function.

Finally, on the issue of CIC's obligation under RTI Act, the Court by referring to the rejection of K.T Shah's proposal during the Constituent Assembly Debates on 19.05.1949, observed that an attempt of conferring sole discretion upon the House to decide privilege was denied by the Assembly during the drafting of Article 105. On the matter of the whether the CIC could hear questions of law, the Court placing reliance upon Supreme Court decisions, observed that although CIC discharges administrative function, it may have to decide "intricate questions of law" which had to be decided in accordance with law laid down by the Supreme Court. If such matters came up for decision, it would be heard by the CIC with "wide knowledge and experience in the field of law." The Court observed that there is contradiction in the contention that discharge of its functions would be as per the law laid down by the Courts or that law relating to parliamentary privilege would only be decided by the Courts and not CIC, in view of section 8(1)(c) and section 18 of the RTI Act. In the instant case, the Court observed that The exemption contained in section 8(1)(c) viz. whether disclosure would amount to breach of privilege of Parliament or of the State Legislature is just another ground for exemption and there is no reason to treat it differently from any of the other grounds and the CIC would, at its end, be required to decide the issue of parliamentary privilege based upon the legal principles laid down in judgments of superior courts, as applicable to a given case. In view of the obligation cast by the statute on the CIC decide all or any of the grounds for such exemption including the ground of parliamentary privilege without giving any special treatment to the issue of 'parliamentary privilege', the Court observed that "to apply the law, as setout in a statue and/or as interpreted by the superior courts, is the duty and obligation of all State functionaries, else every decision involving application of law would be taken only in a court, which would be wholly unworkable. Accordingly, the CIC is enjoined to decide all exemptions to disclosure, including the exemption contained in section 8(1)(c)"

Supporting the petitioner's contention, the Court further referring to the principle of delegates non potest delegare, held that the CIC could not have shirked off its duties and delegate the decision of such question to the Speaker.

In conclusion the Court held that:

"What is clear in the present case is that the information sought, which was denied, related to the consultation and communications as between the Leader of the Opposition, the Leader of the House and the Speaker in relation to the extension of the Secretary General's tenure. The extension of the Secretary-General's tenure was granted by the Speaker as the head of the administrative wing of the House and not by any collective or collegiate action or decision on the part of the House or any committee of the House. The matter of extension of tenure was not debated or discussed by the House, since it was not part of the legislative function or any other parliamentary function of the House or any committee of the House. The consultation and communications between the Leader of the Opposition, the Leader of the House and the Speaker in relation to the extension of the Secretary General's tenure did not pertain to their role in any proceedings in Parliament; nor did it partake of the character of legislative i.e. the lawmaking function of the said three persons. Disclosure of such consultation and communications would not, by any stretch of imagination or reasoning, hinder, impede or interfere with the participation of the Leader of the Opposition, Leader of the House and/or the Speaker in any proceedings of the House; and did not have the potential to distort, obstruct or threaten the integrity of the legislative process in any manner. The disclosure would not be prejudicial to the core legislative function of the House"

Holding further that the information sought related to administrative and managerial acts of part of the Speaker, the Court held that it ought to have been evident to the CIC that exemption contained in section 8(1)(c ) had no application to the information sought by the petitioner and would not have amounted to a breach of parliamentary privilege. Moreover the Court also held that the CIC had committed an error in disposing of the matter by leaving it to the Speaker, who had also committed an error in holding that such matter was covered by parliamentary privilege. In view of the above, the impugned orders by the CIC and Secretariat were set aside and directions were given to provide the information as per the provisions of RTI within 4 weeks of the date of the order.

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