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information that are useful to a range of stakeholders such as citizens, journalists,
academics, shareholders, etc., who can better inform the public discourse on the
ramifications of these decisions. This is especially true in cases of public interest
litigation, where the Courts indulge in policymaking on the basis of the report of
an amicus curiae or an expert committee set up by judges. The reports of these
committees are not accessible to third parties, though they may be impacted by
these decisions, because they form part of the Court, record and are hence out-
side the purview of the RTI Act.
There is no question of arguing for the confidentiality of these records
because it is by now a well-recognised principle that all judicial proceedings
must take place in open Court, unless prohibited by law for reasonable purposes.
But, while it is completely legal for anyone to sit in Court and take notes while a
lawyer narrates the content of pleadings, the Courts make it as difficult as possi-
ble to access the pleadings in a simple manner. That said, for those with deeper
pockets, it is only a matter of paying out a bribe to get copies of pleadings “in-
formally”.
The overriding Section
The Supreme Court’s verdict in this case hinged on Section 22 of RTI Act,
2005 which states that the RTI Act shall override any other law to the extent that
the latter is inconsistent with the former. The Section states : “Act to have an
overriding effect - The provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of
1923), and any other law for the time being in force or in any instrument having
effect by virtue of any law other than this Act.”
The wording of the provision reveals that the drafters of the RTI Act
were clearly aware that it may conflict with other laws and wanted to ensure that
the procedure under the Act overruled the procedure in existing legislation. De-
spite this crystal-clear wording of Section 22, the Supreme Court and, on previ-
ous occasions, the High Courts, have concluded exactly the opposite.
In this particular judgment, the Apex Court cited an obscure service law
precedent to claim that a general law with a non obstante clause (such as Section
22) cannot overrule a special law. What appears to have missed the Court’s atten-
tion is that the wording of the non obstante clause in the precedent was complete-
ly different from Section 22 and hence this precedent itself was not applicable to
the facts of this case.
Further, not satisfied with citing an obscure precedent, the Court also
proceeded to speculate that Section 22 could not be interpreted in a manner that
implied repeal of other laws since the RTI Act was clear that it was repealing
only the earlier Freedom to Information Act, 2002. This is be wildering reasoning
because the en tire point of non obstante clauses like Section 22 is to save the legis-
lature the job of identifying each and every conflict between different laws. The
reason that the Freedom to Information Act had to be specifically repealed was
because it was on exactly the same issue as the RTI Act.
From a citizen’s perspective, this decision is problematic for two reasons.
One, most High Court Rules allow only parties to a legal proceeding in to access
the records of a case. Some High Courts may allow third parties to access Court
records if they can justify their request. This is entirely unlike the RTI Act, where
no reasons are required to be provided thereby vastly reducing the possibility of
administrative discretion.
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