New Delhi: “Why were names of Mukesh and Anil Ambani not included in the charge sheet [in a case of alleged manipulation and tampering of calling lines]?”
Copies of “views expressed by the state of Nagaland and the recommendation made by the Supreme Court Collegium to the Government of India” with respect to appointment of judges in the Guwahati High Court.
“File notings of the appointment as Director, CBI, New Delhi, of the existing and the then Director of CBI.”
These are some of the many information requests that the apex body for right-to-information (RTI) matters, the Central Information Commission (CIC), had ordered for disclosure in 2009 and 2011 (here, here) but were almost immediately stayed by the Delhi High Court (here, here, here).
While the union government’s role in undermining India’s 17-year-old right-to-information law is increasingly clear (here, here, here and here), our analysis of 18 cases from Delhi and other High Courts—through data obtained under the RTI Act—reveals a troubling state of affairs for India’s transparency regime in its courts.
High Courts staying orders of the information commission at the first instance—before even hearing the opposite side—followed by long gestation periods of the cases, frequent adjournment of hearings, and non-listing of cases for unexplained reasons are some of the issues that are hindering the RTI framework.
Experts Article 14 spoke with said that the “indiscriminately” long gestation period at the courts for RTI matters that seldom raise questions of law and require expeditious resolution because “time is of the essence in the RTI Act” is having a “cascading effect” on the overall transparency framework of the country.
Our analysis reveals these issues are leading to a loss of interest in pursuing causes of transparency and government accountability and serving as a deterrent for people exercising their right to know.
The analysis also reveals that not only are the courts struggling to address routine cases arising out of the RTI Act, but also grappling with challenges that pertain to the interpretation and implementation of the law itself.
It highlights the critical need for higher courts to play a role in interpreting and clarifying laws while ensuring a law’s proper BBC implementation.
“A significant number of Information Commission orders are not in sync with the law,” Shailesh Gandhi, a former central information commissioner, told Article 14. “But most RTI users do not approach the courts because of the cost and indiscriminately long time taken to get a decision.”
Large Disposals by Commissions, Rare Challenges in Courts
The RTI Act provides for a three-tiered transparency and accountability framework for public bodies by mandating a 30-day response to an application seeking information.
It provides for an appeals mechanism and establishes an Information Commission—CIC at the central level for central public authorities and a state-level Information Commission (SIC) for state authorities.
These commissions are the apex body that decide appeals and complaints arising out of RTI applications and have the power to penalise public information officers (PIOs) if they fail to adhere to the law and its timelines.
Although the RTI Act states that the commission is the final appellate authority, a challenge to its decision could still lie at the Supreme Court under Article 32 and High Courts under Article 226 of the Constitution.
However, despite a growing impression that these commissions are not compelling governments to disclose information in a large number of public interest cases, our analysis shows their decisions are rarely challenged at the higher courts.
For instance, the CIC dealt with around 27,000 cases between July 2022 and June 2023, yet, the Delhi High Court received around 45 cases—0.17 percent—challenging the commission’s orders in that period, according to our analysis. .
Venkatesh Nayak, director at Commonwealth Human Rights Initiative-India, a London-based international non-profit with an office in New Delhi, said that the extremely rare challenges to information commission orders are not an indication that its orders are satisfactory.
“On the contrary, this indicates the inability of RTI applicants who are dissatisfied with the decisions of the commissions to approach the High Courts for review of the unsatisfactory decisions,” Nayak told Article 14.
“The wait for disposal of such cases is too long in addition to the wait at the commissions. It is an expensive proposition to go to the High Courts to challenge the decisions as few lawyers take up such cases pro bono. So a large number of decisions of the commissions that get challenged in the courts are filed either by public authorities themselves who can do this utilising public funds or by public information officers who challenge penalty orders,” said Nayak.
“Rarely do citizen applicants muster the resources to go to court,” he said. “This is a major discouraging factor.”
A State of Perpetual Limbo
Of the cases that do make it to the courts, judges keep cases languishing in a state of perpetual limbo.
This reporter filed RTI applications with the High Courts of Delhi, Bombay, Calcutta, Madras, and Karnataka, and separately with the central government’s Department of Personnel and Training (DoPT), the nodal department responsible for the implementation of the RTI Act.
The RTI sought details of pending and disposed cases arising out of central or state information commission orders since 2005. In other words, details of cases filed as a challenge to an Information Commission order.
All, except the Madras High Court—which said it did not maintain the data and collecting it would disproportionately divert its resources—provided some information.
They paint a grim picture.
—The Delhi High Court stated that as of September 2023, 390 cases arising out of CIC orders were pending before it. Of these, the oldest case is from 2007.
—The Bombay High Court stated that as of June 2023, 24 cases related to the CIC and 7 cases related to the Maharashtra SIC were pending before it. The oldest case is from 2009 for the former and 2010 for the latter.
—The Calcutta High Court stated that as of July 2023, it had 15 cases related to the CIC, the oldest from 2009, and 36 cases related to the West Bengal SIC, the oldest from 2012, pending before it.
—Similarly, the Karnataka High Court said as of May 2023, it had 28 pending cases each for CIC and Karnataka SIC. It did not provide a detailed list of cases but a search on its website revealed the oldest case is from 2010 for CIC and 2013 for SIC.
—The Supreme Court stated that as of June 2023, it only had 1 pending case related to the CIC from 2022.
—The DoPT said it is a party to several public interest litigations and writ petitions that seek systemic changes in the implementation of the RTI Act or raise questions of law. The oldest such petition has been pending at the Supreme Court since 2010.
“It is always a case of tareeq pe tareeq [date over date]. The Covid-19 pandemic has also delayed the disposal of such cases. The purpose of the RTI Act stands defeated as information delayed for too long is as good as information denied,” Nayak told Article 14.
“Adjourned”, “Judge on Leave”, “Paucity of Time”
Given that the Delhi High Court hears the highest number of RTI-related challenges, this reporter analysed 18 oldest cases filed by government authorities challenging CIC orders between 2009 and 2012. Three recurring trends are:
—Court granting a stay on commission orders immediately without hearing opposite side
—A culture of frequent adjournments
—Judges unable to take up all matters they list for a day
—Pending adjudication of similar matters before other benches or the Supreme Court
When a public authority loses a case and approaches the High Court, it is sure to obtain a stay on the CIC’s order for disclosure of information. A stay was granted by the court in 17 of the 18 cases—one unclear if granted—filed by a government body.
Of these, a full-fledged hearing including oral arguments has not begun in any of the cases despite 11-15 years having lapsed.
One of the reasons for the long gestation period of these cases is that a judge, responsible for their board, which notifies all the cases listed for hearing in a day, is unable to hear all the matters listed due to “paucity of time”.
Usually, a judge lists anywhere between 40 to 60 cases in a day or even more, depending entirely on them.
With a crippling pendency of more than 1,11,000 cases and shortfall of 16 judges out of 60 sanctioned positions in the Delhi High Court, matters that are not taken up by a judge on a given day are usually re-listed again after 3-6 months, unless specifically directed for an earlier date.
As seen with most other High Courts, in case a specific date is not given, there are chances that the case may not be listed at all.
This en bloc adjournment results in cases being automatically pushed down by close to half a year simply because a judge is unable to hear all the matters they chose to put on their board.
Gandhi, the former central information commissioner, said that most judges list a very large number of cases assuming that most will be adjourned.
“I have often heard that frequent adjournments in courts are largely responsible for huge delays in the disposal of cases,” Gandhi told Article 14.
“This leads to a number of litigants and lawyers wasting their time. Many courts also waste 15 to 20 percent of their time in calling out and adjourning cases. If adjournments were given as per law, disposal of cases would go up significantly,” he said.
The situation is exacerbated by the culture of frequent adjournments in the Delhi High Court. The following case is a typical representation of how cases are pushed into oblivion.
In a case where the CIC had ordered the Ministry of Finance to disclose records relating to the Departmental Promotion Committee (DPC), the Delhi High Court stayed the order and repeatedly adjourned the case on request of the Union of India from March 2014 to February 2017. When the matter was listed, the case was automatically adjourned to August 2017 because the judge was “on leave”.
On the next date, though listed for hearing, the case was adjourned since the bench was hearing a “specially directed matter”. From April 2018 to May 2019, the court did not hear the matter since it was awaiting the pronouncement of a judgement in a similar case. When finally listed for hearing in November 2019, counsel for the Union of India did not appear.
Two years later, when the case was listed in March 2022, the judge did not reach the matter. The case was adjourned by eight months to November 2022 and yet, on the day of the hearing, no one showed up. When listed five months later, counsel for Union of India again sought an adjournment which the judge granted.
The case was re-listed in July this year but the respondent party—the RTI applicant—did not appear. The court noted that it was not inclined to proceed with the matter any further and issued a final notice to the respondent party to appear and argue the matter. The next date of hearing indicated was 13 February 2024.
This is not a one-off case. Many other cases reveal a similar modus operandi of working.
The third problem is that the judges defer hearing in the case on account of a similar case pending adjudication before other judges or the Supreme Court.
In five out of 18 cases, the judges repeatedly adjourned the case either because another bench of the same court was deciding a similar question of law or a similar case was pending Supreme Court adjudication.
“This is the result of not filling sanctioned judicial positions,” Gandhi, the ex-commissioner said. According to the India Justice Report (IJR) 2022, as of December 2022, High Courts were functioning with only 778 judges against a sanctioned strength of 1,108 judges. This, despite a crippling pendency of cases across courts in India crossing the 5 crore mark.
Due to one of the above problems, four cases since 2011, three cases since 2012, two cases since 2013, two cases since 2014, and two cases since 2018 have not even been listed for a hearing.
Nayak said that a judge should ensure that adjournments in RTI matters are given only for cogent reasons and “not for reasons like the government counsel is busy with another matter in another court”.
When a High Court passes a stay order in a case without hearing the other party, Article 226(3) of the constitution allows such a party to file an application seeking vacation of the stay and mandates the court to decide their application within 2 weeks.
“This is rarely done,” Nayak, the Director at CHRI-India said.
“Cases Becoming Futile”, “Delaying Public Policy Changes”
In September 2020, Prashant Reddy, a lawyer on drug regulation and a public health activist, approached the Delhi High Court challenging an order of the CIC that refused to recommend action against officials in the Drugs Controller General of India (DCGI) for misplacing documents and denying information under the RTI Act.
Reddy had sought a copy of the report submitted by a committee headed by Dr T M Mohapatra, constituted by the DCGI in 2013 after certain irregularities were observed by a Standing Committee of Parliament in the approval process of drugs in at least four cases.
After initially claiming that the report was “untraceable”, the public information officer (PIO) at the DCGI’s office provided an incomplete report of this committee.
Reddy’s petition before the Delhi High Court seeks a copy of the complete report, including “crucial annexures”, that he says pointed out shocking lapses by the office of the DCGI in the approval of new drugs under the Drugs & Cosmetics Act 1940.
“If the report had been made available earlier, it would have provided policymakers with the flaws in the drug approval process,” Reddy told Article 14.
“This would have helped draft regulations in a way to fix the existing loopholes in the system. Those missing annexures will help fix culpability on officers who improperly approved drugs,” he said.
Reddy’s petition has been adjourned six of the 12 times it has been listed in the past three years for reasons like “no time left”, “judge attending international seminar”, or the Union government counsel repeatedly seeking adjournments.
In February 2009, the CIC allowed an RTI application that sought disclosure of certain collegium records pertaining to the proposal to appoint Gauhati High Court advocate Dinesh Kumar Mishra as a judge. Its order to the union law ministry was almost immediately stayed by the Delhi High Court in March 2009 and has remained pending without a full hearing till date.
Of the 22 times the matter was listed for hearing, the matter was adjourned 16 times since the question of law involved in the matter was pending adjudication before a constitution bench of the Supreme Court in a different but similar case.
However, despite the constitution bench pronouncing the judgement in November 2019, Mishra’s case remains pending for reasons such as “judge on leave”, judge not holding court, centre’s counsel not having instructions, or simply adjourned on request of the centre’s counsel.
“I have lost interest in the case,” Mishra told Article 14.
“My lawyer is pursuing the case now. I wanted to expose the system and reveal how if a single judge is not in favour of your appointment, the whole system simply agrees with him. The collegium is a totally opaque body and there is simply no transparent procedure they follow. It’s all hearsay,” he said.
The collegium system of appointment of judges to the higher judiciary has been under criticism for its enduring opacity, lack of transparent and fixed procedure for selection of candidates, and for being an “old boys’ club”.
“The case could have made a difference and brought in some transparency to the system [of appointments]. But unfortunately, the system continues as it is to date,” Mishra said.
It is not just cases arising out of information commission orders that are delayed.
Some crucial public interest litigations (PILs) filed by interested or public-spirited parties concerning the RTI Act are also pending adjudication at the courts, as per information shared by the DoPT under RTI to this reporter.
Seven cases seeking various relief relating to the RTI Act are pending in the Supreme Court.
The oldest of these has been pending since 2010.
Three such cases are pending at the Delhi High Court, one of them since 2011. One each in Punjab & Haryana High Court (oldest from 2012), Calcutta High Court (oldest from 2019), Gujarat High Court (oldest from 2018), and Bombay High Court (oldest from 2021).
Similarly, four cases in the Kerala High Court—oldest pending since 2019—and two in the Allahabad High Court.
Five petitions that challenged the 2011 decision of the United Progressive Alliance government to include the Central Bureau of Investigation (CBI) in the list of exempted public authorities from the purview of RTI Act on the grounds that it is “illegal, arbitrary, malafide, unlawful, unjust, unwarranted, and against the principles & spirit of RTI Act” are pending Supreme Court decision since 2012.
“This case is a notorious one because they are refusing to give access to corruption cases they are investigating and also those cases launched against their own officers,” Nayak said.
“This amounts to complete exemption for an organisation, which is simply not permissible under the scheme of the RTI Act,” he said.
Although the RTI Act exempts 25 organisations like the CBI, the Intelligence Bureau, and the Central Armed Police Forces from provisions of the Act, information could still be eligible for disclosure if the information sought relates to human rights or corruption.
An appeal filed in the Supreme Court by the chief minister of Delhi Arvind Kejriwal in 2010, before he came to power, sought the court’s order for the central government to lay down guidelines for the appointment of information commissioners in the CIC.
The Delhi High Court had dismissed his petition the same year.
Highlighting the need for such criteria, Gandhi said there should be a proper process for the selection of information commissioners.
“Presently there is no process. It is primarily arbitrary and based on political and bureaucratic networking. We have not built institutions and hence our checks and balances of democracy do not work.”
(Saurav Das is a Delhi-based independent investigative journalist)
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