“Information is power. This is truer now, in this information age, than ever before. In a democracy this power of information which the public authorities possess is to be shared with the people. But at the same time, not every piece of information is to be made public. There is the public interest and democratic purpose in dissemination of information on the one hand and the competing private rights and national interests in general non-disclosure, on the other.”
These are the opening lines of a detailed judgement written by Justice Bader Durrez Ahmed of Delhi High Court while deciding a challenge to a decision of the Central Information Commission (CIC) set up under the Right to Information Act, 2005 (RTI Act). The Judge speaking on behalf of the division bench comprising of himself and Justice Veena Birbal sets a stage for a more balanced and holistic discourse on the meaning and implications of the RTI Act.
While RTI Act may have been one of the most talked about statute in the country with a whole lot of discourse being generated in praise of the revolution the Act can bring about, the Delhi High Court judgement tones down the tenor of the discourse by pointing out the circumference of the powers conferred on CIC under the statute. The judgement examines in detail the role and powers assigned to the bodies set up under the Act very closely and presents a balanced perspective of the statute without getting overwhelmed about the purpose of the Act as CIC seemed to have done in this case.
Coming down heavily on CIC, the Delhi High Court has set aside an order dated 22.09.2009 passed by it against the Delhi Development Authority (DDA). The impugned order was result of a sequence of events which were set into motion by a complaint filed by one Sarabjit Roy in 2005 under the RTI Act 2005. The complaint was against DDA and, in particular with regard to lack of disclosure of information concerning the ongoing modification of the Master Plan of Delhi for the year 2021 (MPD 2021).
“This is a case where the Central Information Commission and the Chief Information Commissioner have traveled beyond their boundaries of power and have thereby transgressed the provisions of the very Act which created them,” observed the division bench while pronouncing the judgement today.
Having heard the arguments and examined the records on filing of the complaint by Roy, the CIC had felt that the levels of compliance of the DDA both in letter and spirit of the RTI Act left much to be desired. The CIC had remarked that it did not appear that close attention was being paid by the top management of the DDA to ensure a smooth transition to the transparency and accountability demanded by the RTI Act. The Commission was of the view that there were substantive grounds to initiate inquiry on the complaint and instituted a committee for the purpose of going into the details of servicing of the RTI Act by all wings and sections of the DDA. The Commission had also noted adversely the absence of DDA Vice Chairman on the day of the order dated 22.09.2009, who according to CIC was apparently specially invited on the occasion to help in arriving at the decision regarding compliance of the CIC orders.
DDA, by way of a writ petition under Article 226 of the Constitution of India, had sought quashing of the impugned order, as well as declaration of the CIC (Management) Regulations, 2007 as ultra vires i.e. beyond the powers conferred under the RTI Act. In particular, DDA had prayed for the quashing of Chapter IV of the regulations with specific emphasis on regulation 20 which provides for disciplinary action and imposition of fine in the event a Public Information Officer does not live up to the spirit of providing timely, adequate and correct information. DDA was also aggrieved of CIC’s adverse comment on its Vice Chairman.
The bench in its order today said “It appears that CIC Commissioner has sought to overwrite not only the statutory provisions but also the statutory rules.” It remarked that the CIC is not a court of plenary jurisdiction and its powers and functions are circumscribed by the statute. Quashing the impugned regulations formulated by the CIC Commissioner, the court said it is an instance of complete transgression of CIC’s statutory powers.
The court held that while CIC did have power to inquire into compliance of the RTI Act, it could not delegate the said power to a committee outside the Commission. The bench held that this was contrary to a well established principle of law “Delegatus non potest delegare” i.e. in the absence of any power a delegate cannot sub-delegate its power to another person. After examining the provisions of the RTI Act as well as rules made there under, the court was of the opinion that nowhere in the statute or the rules was CIC empowered to constitute a committee to conduct an inquiry. The court held that the regulations framed by the CIC providing for such power were itself ultra vires.
The court also took exception to CIC making adverse comment on absence of Vice –chairman of the DDA before it, when it did not have power to summon such high functionalities of public authorities except to the extent of summoning the witnesses to give evidence or produce documents.
The court also held the regulations as framed by the CIC outside its power and authority in as much as the same not only provided for regulation of the affairs of the CIC but also added substantive powers to its kitty including power to impose costs when statute only empowers it to grant compensation for any loss or detriment suffered. The court also found that the regulations conferred upon CIC power of review and special leave of appeal when the statute nowhere refers to it. Holding such provisions to be ultra vires, the court struck down the regulations as outside the scope of the powers of the Commission under section 12 of the RTI Act.
With due respect, the CIC may consider the feasibility of preferring an appeal against this decision before the DB or the Supreme Court, in view of its wide ramifications as regards the ouster of the CIC’s jurisdiction over the powers of calling high officials.