The legal angle
The Legal Complications of RTI vis-à-vis The Commissions under the Act
RTI BY ARSALAN MUBASHIR MUSHTAQ
Since the Right to Information is being recognised as the Watch Dog Legislation, paradoxically the commission executing it is still a paper tiger and works ultra virus while dealing with the RTI cases in country in general and in the state of J&K in particular. RTI Act-2009 was enacted in state of J&K in year 2009, which is the mutation of similar central legislation, RTI Act of 2005. The Procedural aspect is that the Right to Information petitions are filed by the aggrieved information seeker before the Information Commissions, set up by the Act therein, therefore making such commissions statutory in nature.
Much debate has followed since the enactment of this Act, to the effect of legal dilemma of what constitutes the Public authority under this Act. Section 2(h) of the right to information Act, 2005 (central) reads as “Public Authority” means any authority or body or institution of self government established are constituted, - (a) by or under the constitution; (b) by any other law made by the Parliament; (c) by any other law made by the State Legislature; (d) by the notification issued or order made by the appropriate Government, and includes any- (i) body owned, controlled or substantially financed; (ii) non- Governmental Organisation substantially financed, directly or indirectly by funds provided by the appropriate government.
In this backdrop, there are the institutions/bodies which directly fall within this provision but there are some institutions which don’t directly fall within the purview of the above death definition. Of late societies and companies have been declared as public authorities by the public information commissions. This unsettled debate is going on in the legal spheres to the point that what actually constitutes a Public Authority.? The expression Public Authority in the Act is illustrative in respect of the bodies which shall constitute a public authority. This has left huge scope for inclusion of new bodies within the ambit of RTI Act and say may depend on the subjective view of each commission. Such interpretation based on subjective view may lead to uncertainty like a body/institution which is declared as a public authority by one commission may not be declared as such by another commission of another state. Hence once again making the RTI Act complicated and thereby frustrates the object and purpose of the law.
By this Subjective Approach of the Legislature vis-à-vis ambiguity in definition of the Public authority under RTI Act, the Commission is trying to bring all the private bodies/institutions with in the ambit of the RTI, which if remain in practise would consequently create a legal mess. The power of the commission is in no way should decide whether or not an institution or a body falls within the definition of Public authority. This power should remain vested with the legislature otherwise in the zest of bringing more and more bodies/institutions within ambit of RTI Act, may defeat whole purpose of the Act, which has been basically formulated to bring accountability and transparency in the government and other state institutions. Most importantly such an ambiguity is still a barrier in the way of expeditious and fair disposal of the cases of RTI.
The point here to make is that as per jurisprudence of Civil Procedure Code the Civil Courts cannot interpret the provisions of the legislations. The Code provides expressly that the civil Courts are statutory bodies and limits their power only to decide on matters involving the question of fact not the question of law. Therefore whenever any such matter, which relates to question of law and involves interpretational ambiguity pertaining to the provisions of a particular legislation, is raised before any such court, the code bars the courts and provides that such court is under an obligation to refer such matter to the Higher Courts to decide.
However the framework of the information commissions is statutory in nature alike to that of civil courts but sarcastically such a procedure of referral is missing in the Right to Information Act, 2005. The Act on that point being bad in law impliedly empowers the commissions to decide even on the matter of law which is unconstitutional and thereby ultra virus. The Act ought to have taken care of this nitty-gritty and would have expressly mentioned within its provisions the procedure of referral.
Moreover such complication would have been escaped or can be still ignored, if a Schedule is passed and annexed to the Act by the Parliament/Legislature to the effect to include the subjects that constitutes a ‘Public Authority’ viz power of reference. The Act needs an Amendment by incorporating the provisions in the Act similar to that of Code of Civil Procedure to say referring such matters to higher courts. For this very attempt the commission may itself recommend it to the legislature or such power may be given to the government or the government may suo motto prepare a schedule to remove the ambiguity in the Act. But till such an attempt is made the point relating to such matter involving question of law, is constitutionally and legally to be decided by the Higher Courts not by the Commission.
(Arsalan Mubashir Mushtaq is Internee, at Supreme Court of India, (Pursues Law Hons. from Aligarh Muslim University, Aligarh, firstname.lastname@example.org)
Lastupdate on : Fri, 20 Apr 2012 21:30:00 Makkah time
Lastupdate on : Fri, 20 Apr 2012 18:30:00 GMT
Lastupdate on : Sat, 21 Apr 2012 00:00:00 IST
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