As many as 15 sitting and former information commissioners (ICs) have urged chief justice NV Ramana to direct courts, which are routinely invoking their writ jurisdiction to pass stay orders against decisions given by the information commission on Right to Information (RTI) appeals, to provide reasons how the challenge falls in the writ jurisdiction of the high courts.
In the letter, these ICs say, “We request you to please consider treating this as a suo moto public interest litigation (PIL) and issuing appropriate directions to make RTI effective in line with the Constitution and the law passed by the Parliament.”
“You may please consider directing courts to give reasons how the challenge falls in the writ jurisdiction of the high courts. At the very least, orders of imposition of penalty should not be stayed as no irrevocable harm can come to the penalised official. It should also be ensured that if any stay order is given, it should give reasons for staying the statutory order of the (information) commission. In case the penalty order is quashed the exchequer can refund the amount. They should also give effect to Article 226 (3) when dealing with petitions asking for a stay order against information commission’s decisions,” the letter says.
Many high courts stay orders of ICs where no reasons are given either in the petition or in the orders describing how the challenge would fall under the writ jurisdiction of the court. These cover orders directing disclosure of information as well as the imposition of penalty under the RTI Act.
The letter is signed by Satyanand Mishra, former chief central information commissioner, former central information commissioners Shailesh Gandhi, Prof Sridhar Acharyulu, Prof MM Ansari, and Yashovardhan Azad, as well as Ratnakar Gaikwad and Dr Suresh Joshi, both former state chief information commissioner of Maharashtra, Thanksy Francis Thekkekara Ajit Kumar Jain, Vijay Kuvalekar and Sambhaji M Sarkunde (all former state information commissioners of Maharashtra), L Krishnamurthy, former state information commissioner of Karnataka, and Atmadeep, former state information commissioners from Madhya Pradesh. Two incumbent state information commissioners from Madhya Pradesh, Rahul Singh and G Krishnamurthy have also signed the letter sent to chief justice Mr Ramana.
Drawing the chief justice’s attention towards the RTI Act and its provisions, the ICs quoted Section 23 of the Act, which states, “No court shall entertain any suit, application or other proceedings in respect of any order made under this Act and no such order shall be called in question otherwise than by way of an appeal under this Act. Thus the Parliament clearly intended that the final appeal will lie with the information commissions.”
Quoting the Surya Dev Rai vs Ram Chander Rai and ors.
case, they (ICs) highlighted the powers of the Certiorari (court process which seeks judicial review of a decision of a lower court or government agency and the special circumstances under which they can seek a review). The letter reads, “Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of the law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.”
The letter further highlighted the irregularity of writ orders, “We would like to point out that a significant number of stays do not fall in the writ jurisdiction of high courts and are appeals labelled as writs. It is submitted that after staying the statutory order of the Information Commission, most cases languish, and citizen’s fundamental right under Article 19 (1)(a) is violated. It appears that Parliament was conscious of this and hence proscribed further appeals after the Commission.”
In the letter, the ICs also talk about Article 226 (3) of the Constitution, which states, “…that where a stay has been obtained without the participation of the respondents, the high court shall dispose of the application within two weeks from the date on which the petition for vacation of the stay is made. If this is not done, the stay stands vacated.”
This, however, is not being implemented across the nation, they added.
When contacted by Moneylife, Mr Singh, the state information commissioner of MP, stated, "Several times, we give notices to the public information officers (PIOs) for second appeal hearings, but they remain defiant and do not appear. And then they easily get a 'stay' from the HCs, which are often not reasonable or speaking orders. In several cases, the information commissioners hail from legal backgrounds, and their drafting is very precise. Yet, a 'stay' is mechanically given by the judge. It is frustrating as the HCs do not acknowledge the work done by information commissioners, including procuring documents and investigating them before giving the orders. Also, with such 'stays', the applicants do not get their rightful information in time."
You can read the entire letter here: