Central Information Commission
Harish Lamba vs District Session Judge on 13 July, 2018
CENTRAL INFORMATION COMMISSION
Baba Gang Nath Marg, Munirka
New Delhi-110067
F. No.CIC/DSESJ/A/2017/101632
Date of Hearing : 31.05.2018
Date of Decision : 13.07.2018
Appellant/Complainant : Mr. Harish Lamba
Respondent : PIO
District & Sessions Judge
New Delhi District, Patiala House
Information Commissioner : Shri Yashovardhan Azad
Relevant facts emerging from appeal:
RTI application filed on : 02.09.2016
PIO replied on : 28.09.2016
First Appeal filed on : 30.10.2016
First Appellate Order on : 09.11.2016
2nd Appeal/complaint received on : 10.01.2017
ORDER
1. The present second appeal under Section 19 of the RTI Act, 2005 impugns the decision of First Appellate Authority (FAA), District & Sessions Division, New Delhi at Patiala House Court Complex dated 09.11.2016.
2. Vide RTI application dated 02.09.2016, the appellant sought information related to the Court presided over by Shri Mukesh Kumar, Addl. District Judge-02, Patiala House Courts, New Delhi. Information regarding cases represented by advocates M/s K G Bansal & Company, New Delhi before the aforesaid judicial officer as follows was sought:-
1. Name & address of the parties against whom injunction order passed.
2. Suit no. and date of filing such suit.
3. Date of passing ex party injunction orders
4. Date of vacation of injunction orders.
5. Date of passing of final orders where injunction is not vacated.
3. Replying to the aforesaid RTI application, the PIO, Patiala House Court, New Delhi vide letter dated 28.09.2016 furnished reply as received by the Ahalmad in the Court of Sh. Mukesh Kumar, ADJ as under:-
"......information sought cannot be provided in terms of Section 8(d) and 8(e) of RTI Act, 2005."
4. Dissatisfied with refusal of information under section 8(1)(d) & (e) of the RTI Act, the appellant filed first appeal. The First Appellate Authority/Special Judge-NDPS Act vide decision dated 09.11.2016 observed:-
"In view of the above, in my view, the information sought is exempt under Rule 7(vii) & (ix) of Delhi District Court (Right to Information) Rule 2008 framed by Hon'ble High Court of Delhi because the information sought is non-existent and it amounts to analyzing the information for the applicant which does not form part of any existing record of this information.
Thus, PIO was correct in refusing the information sought to the applicant but, as stated above, on wrong ground of law."
5. Feeling aggrieved with the first appellate order, the appellant approached the Commission. Hence the present appeal.
6. In course of hearing, both the parties were heard at length. It is the contention of the appellant that the decision of PIO was patently unlawful as correctly observed by the FAA. He submits that the FAA did not appreciate the practices of information management as prevailing in the Delhi District Courts. Augmenting his contention, the appellant draws attention of the Commission towards the website of Patiala House Court (http://ecourts.gov.in/newdelhi). It is argued by the appellant that the facility to search case status, judicial orders etc is available on various parameters such as Name of Litigant, Case No, Advocate's Name, FIR No, ACT wise case search, Case type Search etc. He submits that the aforesaid search tools are though offered online but they seldom function. It is his contention that after computerization of all judicial work, the information as sought by him was not only maintained but the PIO could have searched the digital record in no time. He alleges that the denial of information cannot be seen in isolation but a deliberate attempt to subvert the cause of transparency. When asked to substantiate further, the appellant submits that one M/s K G Bansal & Company, New Delhi while representing various clients before the Court presided over by Shri Mukesh Kumar, ADJ has gained ex-parte injunction orders in various cases, which is quite uncommon. He submits that for researching on the issue of 'high success rate' of a particular law firm before a particular judge, he wanted to access the information sought. He alleges that the information is accessible to the PIO/ Ahlmad at a click of a button, as vouched by the website of Patiala House Court but for obstructing the flow of information, various excuses were made by the PIO which were further endorsed by the FAA. Yet another contention of the appellant is that for assessment of performance record of judicial officers and subordinate staff much greater degree of complex information is readily available to the High Court and District & Sessions Judge being disciplinary authorities.
7. On the other hand, the PIO, Patiala House Court has persistently relied upon Rule 7(vii) & (ix) of Delhi District Court (Right to Information) Rules to deny the information. The same reads as:
7. Exemption from disclosure of information: The Public Information Officer or the Assistant Public Information Officer may not provide the information to the applicant on the following grounds:
.....
(vii) The information is nonexistent and will be necessary to create it for supplying it to the applicant.
.......
(ix) The information amounts to analyzing the information for the applicant which does not form part of any existing record.
8. The respondent PIO argues that information sought in the format is not available and the same needs to be compiled, which would amount to creation of information. However, when it is put to the PIO as to why the information database available on website of Patiala House Court cannot be used by PIO to cull out information as desired by the appellant, no satisfactory reply could be elicited. The PIO agreed that all cases on board of various Court at Patiala House Complex are electronically registered and the database is shared online with general public where case information, daily orders, case status and other dynamic information is accessible for benefit of litigants and general public. Despite agreeing to the fact that name of counsel/ advocate filing a fresh case is recorded at time of registration and assignment of case number, the PIO failed to offer any justification as to how searching within a database on a given electronic database amounts to 'creation' of information.
Decision:
9. Right to Information is a cherished right; an offshoot of Right to life as guaranteed under Article 21 of the Constitution. It is not a fundamental right but it operates as a statutory right which is no less important than fundamental right in the present age. RTI Act is an enabling statute which aims at promotion of transparency and accountability. In the wisdom of legislature, only few reasonable and definite exceptions were carved out under Section 8 of the RTI Act which place fetters upon the Right to Information. Each exception addresses an adversarial interest which is rival to cause of dissemination of information and thus, a balance is sought to be established between various rights. Each exception carved out under Section 8 is definite and leaves no room for ambiguity. In few clauses viz clauses (d), (e) and (j); the Right to Information prevails over the rival rights where the disclosure of information is in larger public interest.
10. Rules, often termed as the Delegated or Subordinate Legislation are drawn up in exercise of Executive power to 'supplement' and not 'subvert' the parent statute in achieving the optimum result. The expression 'Subordinate Legislation' explicitly connotes subordination to its parent statute. A Subordinate legislation which is contrary to objects sought to be achieved by its parent statute is liable to be discarded.
11. Right guaranteed by a statute and the enabling provisions operating in consonance with the preamble or objective of the statute must be liberally executed in the true spirit of law. It is an established principle of statutory interpretation that statutory 'exceptions'; which infringe upon the Rights guaranteed under the parent act are to be interpreted narrowly and strictly. The scope of original exceptions cannot be enlarged by means of Subordinate legislation. The statute is of paramount importance and rules which fail to co-exist in harmony with statute, must be denuded of their legal character.
12. The High Court of Delhi enacted Delhi District Court (Right to Information) Rules in exercise of power conferred under Section 28(1) of the RTI Act read with Article 235 of the Constitution of India. Having gone through the rules (ibid), the Commission deems it fit to opine upon the counter RTI effect orchestrated by the Rule 7 of the Delhi District Court (Right to Information) Rules. Rule 7 reads as:
7. Exemption from disclosure of information: The Public Information Officer or the Assistant Public Information Officer may not provide the information to the applicant on the following grounds:
(i) The information asked for is covered by sections 8, 9, 11 or 24 of the Act.
(ii) The information asked for relates to Delhi Judicial Service or Delhi Higher Judicial Service and it has no jurisdiction to provide such an information to the applicant.
(iii) The information relates to the confidentiality of any examination or selection process conducted by the office of the District Judge for the appointment of ministerial staff.
(iv) The information amounts to intrusion in the judicial work of any court.
(v) The information amounts to overreaching a decision of any judicial body which was authorized to provide the information but has declined to do so.
(vi) The information to be sought relates to a judicial proceeding, or judicial functions or the matters incidental or ancillary thereto.
(vii) The information is non existent and will be necessary to create it for supplying it to the applicant.
(viii) The information sought amounts to seeking "opinion" or "advice", which does not form part of any record.
(ix) The information amounts to analyzing the information for the applicant which does not form part of any existing record.
(x) The information asked for is not by a citizen but by an Alien or a Company registered under the Company Registration Act or any other body corporate including a non government organization except where the information has been asked for by any of the office bearers of these organizations in their individual capacity as the citizens of India.
(xi) The application of the applicant may be dismissed if the name and the address provided by the applicant are found to be not correct.
(xii) The information asked for relates to a vigilance enquiry, except for the final result of the enquiry.
(xiii) Any other reason which may justify not providing the information to the applicant.
13. The Commission takes note of the fact that while the parent statute ie. The RTI Act, enumerates only 10 exceptions to the general Right to receive information, the Delhi District Court (Right to Information) Rules adds further 13 'non statutory exceptions' if the information sought related to Delhi District Courts. Clause (xiii) of Rule 7, is an overreaching clause which can deny information on "Any other reason". It is couched as a residuary 'disabling' provision which can accommodate 'any other reason' justifying non disclosure of information. Such an open ended exception cannot be carved out while enacting a Subordinate legislation. Similarly, Rule 9(x) of the Delhi District Court (Right to Information) Rules also runs counter to the mandate of Section 8(1)(b) as the former declares all information relating to judicial proceedings as excepted from disclosure whereas RTI Act nowhere contemplates such a blanket exemption of an entire range of information.
.....
(x) No information can be provided relating to any judicial proceeding under this Act.
.....
14. In Addl. District Magistrate (Rev.) Delhi Admn. v. Siri Ram, MANU/SC/0369/2000 : (2000) 5 SCC 451 Hon'ble Supreme Court observed that the mere conferment of rulemaking power by an Act does not mean that the subordinate legislation can exceed the scope of the enabling Act. It was held:
16. It is a well-recognised principle of interpretation of a statute that conferment of rule-making power by an Act does not enable the rule-
making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. From the above discussion, we have no hesitation to hold that by amending the Rules and Form P-5, the rule-making authority has exceeded the power conferred on it by the Land Reforms Act.
15. In Kunj Behari Lal Butail and Ors. vs. State of H.P. and Ors. (18.02.2000 - SC) : MANU/SC/0111/2000, the Apex Court observed:
14. We are also of the opinion that a delegated power to legislate by making rules for carrying out the purposes of the Act" is a general delegation without, laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself.
[Emphasis added by Commission]
16. In Indian Express Newspapers (Bombay) Private Ltd. and Ors. vs. Union of India (UOI) and Ors. (06.12.1984 - SC) :
MANU/SC/0406/1984; a three judge bench of the Hon'ble Supreme Court held:
73. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute.
That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.
17. One wonders, what queries other than relating to its primary functioning of administration of justice could be put to the PIO of a Court of Law. If such a blanket ban on all accessible judicial information is extended ipso facto without the express requirement of explicit ban by a Court of law as enumerated under Section 8(1)(b) of the RTI Act; it would be nothing short of exempting an entire pillar of democracy from the sunshine law.
18. Sterling character of accountability, fearlessness and ability to set moral benchmarks is the hallmark of Indian Judiciary. As observed by Hon'ble Apex Court, Sunlight is the biggest disinfectant [See: Dinesh Trivedi, M.P. and Ors. vs. Union of India (UOI) and Ors. (20.03.1997-SC):
MANU/SC/1138/1997]. More and more proactive disclosure is in collective interest of all stakeholders of the National interest. The Commission in spirit of the aforesaid observations of the highest Court of the land, implores the public authority ie., District & Sessions Judge, New Delhi District to abjure the use of Rule 7 of the Delhi District Court (Right to Information) Rules for not being in conformity with the RTI Act 2005.
19. The Registrar of the Commission is directed that while furnishing the annual report under Section 25 on the implementation of the provisions of the RTI Act to appropriate Govt. he shall include the aforesaid observation of the Commission under Section 25(3)(g) of the RTI Act.
20. Reverting to the facts of the present case, the onus to justify the denial of information rests upon the PIO. It has emerged from deliberations between parties that a comprehensive database of case management system already exists within the control of the public authority. Desired information can be culled out from the electronic database without loss of any substantial resource. Both the contentions put forth by PIO to deny information are ill conceived. Firstly, it altogether wrong to assume that the information sought is nonexistent. The information sought exists as vouched by public interface of case management database hosted on the website of public authority. Secondly, it is probable that the information may not be readily available in the form sought, however, this alone is not a ground to deny information. The RTI Act acknowledges change of form of information in course of disclosure. Section 7(9) of the RTI Act provides for furnishing information in the manner sought as far as practicable. This implies that the PIO cannot shy away from his statutory duty of furnishing information in the form sought. Only exception to the rule is that when the disclosure may involve expending of substantial resources of public authority; the requirement can be dispended with but that will still enjoin the PIO to furnish information in the form as maintained.
21. Accordingly, the decision of FAA is set aside. The PIO is directed to furnish information sought to the appellant within 3 weeks of receipt of this decision. Compliance report shall be filed before the Commission within 2 weeks thereafter. The appeal is allowed in aforesaid terms.
22. Let a copy of the present decision be communicated to the Ld. Registrar General, Delhi High Court with a request to place the same before Hon'ble Chief Justice, High Court of Delhi for perusal and appropriate action as deemed fit.
(Yashovardhan Azad) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(R.P. Grover) Designated Officer