A group of 15 sitting and retired information commissioners have written to Chief Justice of India NV Ramana, urging him to give directions to courts in the country to not entertain pleas against the orders passed by the Central Information Commission. It is a statutory body set up under the Right to Information Act.

The top appellate body acts on complaints filed by people against central public information officers in government offices who refuse to accept an RTI application. The State Information Commission has the power to receive such complaints and act against public information officers under their jurisdiction.

In their letter to Ramana on September 9, the information commissioners have pointed out that many of their directions were being effectively negated due to stay orders from various High Courts. This, the information commissioners said, was despite the fact that the RTI Act categorically stated that they were the final appellate authorities.

The letter has been signed by two sitting state information commissioners of Madhya Pradesh – Rahul Singh and G Krishnamurthy. The signatories also include four retired central information commissioners and one retired chief central information commissioner.

The information commissioners cited Section 23 of the RTI Act which mandates that no court should entertain pleas against orders passed under the law by them.

“Many High Courts stay orders of information commissioners 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,” the letter said.

Here is the full text of the statement:

Dear Sir,

The undersigned are present and former information commissioners. We respectfully wish
to draw your attention to a practice of grant of stay to orders by the Commissions.
According to Section 23 of the Right to Information (RTI) Act, 2005, “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 Parliament clearly intended that the final appeal will lie with the Information
Commissions.

Many High Courts stay orders of information commissioners 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 ordering disclosure of information as well as
imposition of penalty.

 In the case of Surya Dev Rai vs. Ram Chander Rai and ors. ((2003) 6 SCC 675), the Supreme
Court made the following observations regarding the powers of certiorari under Article 226
of the Constitution:-

“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 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.”

This was reiteration of a similar pronouncement made by the court in Hari Vishnu Kamath
vs. Ahmed Ishaque (1955-IS 1104 : ((S) AIR 1955 SC 233).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.

There is another aspect which we would respectfully like to bring to your attention. Article
226 (3) of the constitution clearly lays down that where a stay has been obtained without
the participation of the respondents, the High Court shall dispose of the application within a period of 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 is not being implemented across the nation.

We request the apex court to reiterate this point.

We must remember that the provisional Parliament had contentious debates for sixteen days before accepting any constrictions of the fundamental right under Article 19(1)(a). The house which constituted members of our Constituent Assembly was very wary about imposing conditions and agreed to Article 19 (2) with great reluctance.

We request you to please consider treating this as a suo moto PIL and issuing appropriate
directions to make RTI effective in line with the Constitution and the law passed by
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 Commission. In case the penalty order is quashed the amount can be refunded
by the exchequer. They should also give effect to Article 226 (3) when dealing with petitions
asking for a stay order against Information Commission’s decisions.