Execution of orders passed by the Commission: A Big Challenge facing the Right to Information - PowerPoint Presentation

Slide1

Execution of orders passed by the Commission: A Big Challenge facing the Right to Information Act, 2005

By:- Adv. Sanjeev Narula

As per Section 20 of the Right to Information Act, 2005 (“Act”), obstructing the delivery of information is punishable. Non compliance of the order to give information would be such ‘obstruction’. The Act in itself does not contain any specific provision dealing with non-compliance of the orders passed by the Commission. The courts have power to punish for Contempt of Court, whereas the Commission does not have such powers.

However, the Hon’ble High Court of Karnataka in the matter of ‘Sri G Basavaraju v. Smt

Arundathi

&

Anr

.’, CCC. No. 525 of 2008 (Civil) vide its order dated 27.01.2009 has held that contempt petition against non-compliance of the order passed by the Commission is not maintainable before the High Court but under section 20 of the Act before the Commission.

Further the

Hon’ble

High Court of Andhra Pradesh

in the matter of

‘

Kadiyam

Shekhar

Babu

v. The Chairman, A.P. Public Service Commission, Hyderabad &

Anr

.’ ,

W.P. No. 1380 of 2012 vide its order dated 05.03.2012 has held that the Act is a self-contained enactment and it provides for stringent measures for enforcement of the orders of the authorities passed thereunder for providing information. High Court is not the executing Court for implementation of the orders passed by various authorities under the Act.

In view of the interpretation given by the High Courts relating to Section 20 of the Act, it can be inferred that the Commission can entertain non-compliance complaints, adjudicate the grievances and decide the matters brought before it, in terms of the provisions contained in the Act. But to what extent?

It is still a matter of concern that what recourse can the Commission take apart from imposing penalties under Section 20 of the Act. How does the Commission “proceed under the Act”, when the Public Information Officer (“PIO”)/Public Authority may have already defied the Commission’s ‘action to be taken’ orders, that is anyway limited under the RTI Act to imposing penalty and directing disciplinary action against the PIO?

There is still no foolproof mechanism to ensure that the information seeker will definitely get his information after the hearing of his non-compliance application. Section 20 of the Act, which deals with Penalties, does not specify as to how the orders are to executed for furnishing information and/or to recover the penalties imposed on officials who have acted malafidely or negligently.Therefore, what still needs to be known is how can the order of imposition of penalty be implemented/executed. Categorically, the provision of Section 20 of the Act is not efficacious in the matter of enforcement of the order passed by the Commission.

In ‘Sri G Basavaraju v. Smt Arundathi & Anr.’, supra, it has been held that Section 20 of the Act could be used by the Commission also to enforce its order. The power of the Commission to impose penalties and to resort to the other modes stated in Section 20 of the Act cannot and should not be construed only to the incidents/ events prior to the passing of an order by the Commission but are also in aid of the order passed by the Commission and its enforcement/ execution.

In the case of Sakiri Vasu Vs. State Of Uttar Pradesh, (2008) 2 SCC 409, it has been held as follows: “18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution.”

ConclusionWhile the decisions taken by the Hon’ble High Courts of Karnataka and Andhra Pradesh may be plausible, it is difficult to ascertain positively and determine conclusively that provision of Section 20 can be exercised by the Commission also to enforce its order in the absence of any mechanism under the Act for the Commission to execute its orders. One must be mindful of the fact that the Information Commissions are set up under the Act and they have to perform their functions and duties within the precincts marked out by the legislature lest they may travel beyond their boundaries of power and transgress the provisions of the very Act which created them. Further, it is trite law that Court cannot, when language of the Act is clear and unambiguous, adopt such a construction which, according to the Court, would only advance the objective of the Act. Therefore, there still remains a grey area on how to implement/execute the order imposing penalty. It is, thus, imperative that the Act be amended by the legislature accordingly, to discourage the culture of ‘impunity’ promoted by this lacuna therein.

A) Contempt of Court Information Commission is an adjudicating authority and does not have the power to punish for its contempt, which power is exclusive to High Courts and Supreme Court under the Contempt of Courts Act, 1971. Hence, this is not the proper remedy.B) Section 20 of the Act This is an effective mechanism, however, when this remedy is invoked, Commission’s power is limited under the Act to imposing penalty and directing disciplinary action against the PIO. No further action is stipulated under the Act.C) High Court seeking writ of mandamus Relegating applicants to approach the Court for executing the Court orders by seeking a writ of mandamus would be tedious, time-consuming and expensive.

Remedy available with the information seeker