Kishan Chand Jain vs Union Of India

Reportable 2023 INSC 915 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

Writ Petition (Civil) No. 360 of 2021

Kishan Chand Jain …Petitioner

Versus

Union of India & Ors …Respondents

ORDER

1. The petitioner invokes the jurisdiction of this Court under Article 32 of the

Constitution seeking directions for the better functioning of the State

Information Commissions 1 under the Right to Information Act, 2005. 2 It is

stated that the SICs, along with the Central Information Commission, 3 play a

pivotal role in the proper implementation of the RTI Act. However, most of the

SICs are located in the capital cities of the States and conduct proceedings

physically. The petitioner asserts that this imposes prohibitive costs on

applicants and appellants, especially those living in the remote areas, as they

have to travel long distances to approach the SICs. Such bottlenecks in the

functioning of the SICs deprive applicants and appellants from effectively

Signature Not Verified Digitally signed by NEETA SAPRA Date: 2023.10.16 16:13:52 IST Reason:

1 “SIC” 2 “RTI Act” 3 “CIC”

1 exercising their right to information. Therefore, the petitioner urges that the

SICs should allow the option of virtual hearings along with physical hearings.

2. The petitioner asserts that it is the legislative intention of Parliament in

enacting the RTI Act to provide information to applicants at a reasonable

expense. Virtual hearings further this legislative intention as they provide

access to information to an applicant in a cost-effective manner. It has been

further asserted that most SICs do not have the facility of online filing of RTI

appeals and complaints similar to the CIC. Moreover, the petitioner urged that

the SICs should adopt a user-friendly digital portal to make the functioning of

the SICs more effective and productive.

3. On the basis of the averments, the petitioner has sought the reliefs as

summarized below:

(i) SICs should hear complaints as well as second appeals by giving the

option of both, physical and virtual hearing through a digital platform

and the State Governments must support the SICs financially and

technically to conduct virtual hearings;

(ii) SICs must update and have self-contained digital portals with online

facilities for:

(a) filing RTI complaints and appeals;

(b) showing the case status of pending/decided matters;

(c) uploading daily orders and judgments;

(d) uploading cause lists; and

(e) uploading annual reports under Section 25 in line with Section 4(2).

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(iii) SICs must be directed to dispose of the complaints within a fixed time

frame, preferably within four months;

(iv) Norms be set up for disposal of a stipulated number of cases per

working day by every Information Commissioner;

(v) SICs should prepare annual reports on the implementation of the

provisions of the 2005 Act and provide them to the State Government

under Section 25(1); and

(vi) SICs should ensure the imposition and recovery of penalties from

erring information officers according to Section 20(1).

4. Notice was issued in these proceedings on 20 April 2021. Thereafter, the

proceedings have been listed before this Court on 21 April 2023 and 10 July

2023.

5. The RTI Act was enacted to operationalize the rights of citizens to access

information about the functioning of the government, which is otherwise only

held by the government authorities. The legislation sets out a practical regime

for citizens to secure access to information under the control of the public

authorities, promote transparency and accountability in the functioning of

public authorities, and constitute the CIC and SICs. Thus, the RTI Act pursues

the legitimate state aim of ensuring transparent and accountable government.

6. In view of the stated objectives, Section 3 of the RTI Act provides that all

citizens shall have the right to information. Section 2(j) defines right to

information to mean the right to information accessible under the RTI Act

which is held by or under the control of any public authority and to include :

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(i) the right to inspection of work, documents records; (ii) taking notes, extracts

or certified copies of documents or records; (iii) taking certified samples of

material; and (iv) obtaining information in the form of diskettes, floppies,

tapes, video cassettes, or in any other electronic mode or through printouts

where such information is stored in a computer or in any other device. Section

2(h) defines a public authority as follows:

(h) “public authority” means any authority or body or institution of self-government established or constituted –

(a) by or under the Constitution;

(b) by any other law made by Parliament;

(c) by any other law made by State Legislature;

(d) by notification issued or order made by the appropriate Government, and includes any –

i. body owned, controlled or substantially financed;

ii. non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.

7. Section 4 obliges every public authority to maintain its records and

computerize them to facilitate right to information under the RTI Act. Section

5 mandates every public authority to designate Central Public Information

Officers 4 or State Public Information Officers5, as the case may be, to provide

information to persons requesting for the information under the RTI Act.

Section 6 allows any person to make a request in writing to the CPIO or the

SPIO, as the case may be, specifying the particulars of the information sought

by them. Section 7(1) mandates the CPIO or SPIO to act on the request for

information within thirty days and forty-eight hours in case of information

4 “CPIO” 5 “SPIO”

4 concerning the life and liberty of a person. Moreover, Section 7(2) states that

failure of the CPIO or SPIO to give a decision within the stipulated timelines

will be deemed to be a refusal of the request.

8. Section 2(k) defines SIC to mean “the State Information Commission

constituted under sub-section (1) of section 15.” Section 15 provides that

every State Government shall, by notification in the Official Gazette, constitute

an SIC to exercise powers conferred on, and to perform the functions

assigned to them under the RTI Act. The SICs consists of the State Chief

Information Commissioner and such number of State Information

Commissioners, not exceeding ten, as may be deemed necessary. The

general superintendence, direction, and management of the affairs of the

SICs is vested in the State Chief Information Commissioner.

9. Section 18 specifies the powers and functions of Information Commissions in

the following terms:

“18. Powers and functions of Information Commissions – (1) Subject to the provisions of this Act, it shall be the duty of the Central Information Commission or State Information Commission, as the case may be, to receive and inquire into a complaint from any person, –

(a) who has been unable to submit a request to a Central Public Information Officer or State Public Information Officer, as the case may be, either by reason that no such officer has been appointed under this Act, or because the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, has refused to accept his or her application for information or appeal under this Act for forwarding the same to the Central Public Information Officer or State Public Information Officer or senior officer specified in sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be;

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(b) who has been refused access to any information requested under this Act;

(c) who has not been given a response to a request for information or access to information within the time limits specified under this Act;

(d) who has been required to pay an amount of fee which he or she considers unreasonable;

(e) who believes that he or she has been given incomplete, misleading, or false information under this Act; and

(f) in respect of any other matter relating to requesting or obtaining access to records under this Act.

(2) Where the Central Information Commission or State Information Commission, as the case may be, is satisfied that there are reasonable grounds to inquire into the matter, it may initiate an inquiry in respect thereof.

(3) The Central Information Commission or State Information Commission, as the case may be, shall, while inquiring into any matter under this section, have the same powers as are vested in a civil suit while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:-

(a) summoning and enforcing the attendance of persons and compel them to give oral or written evidence on oath and to produce the documents or things;

(b) requiring the discovery and inspection of documents;

(c) receiving evidence on affidavit;

(d) requisitioning any public record or copies thereof from any court or office;

(e) issuing summons for examination of witnesses or documents;

and

(f) any other matter which may be prescribed.

(4) Notwithstanding anything inconsistent contained in any other Act of Parliament or the State Legislature, as the case may be, the Central Information Commission or the State Information Commission, as the case may be, may during the inquiry of any complaint under this Act, examine any record to which this Act applies which is under the control of the public authority, and no such record may be withheld from it on any grounds.”

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10. The nature of powers exercised by the CIC or SICs under Section 18 is

supervisory in nature.6 Under Section 18(3), the CIC or SICs have the same

powers as are vested in a civil court while trying a suit in respect of the matters

specified under the said provision.

11. Section 19 provides the appellate procedure by allowing any person who is

aggrieved by refusal of information to seek an effective redress and remedy.

Section 19(1) allows any person who does not receive a decision within the

time specified in Section 7 to prefer a first appeal to a senior officer of CPIO

or SPIO. Section 7(3) allows any person who is aggrieved by the decision of

such senior officer of CPIO or SPIO to file a second appeal with the CIC or

SIC. In such proceedings, the onus to prove that the denial of request was

justified lies on the CPIO or SPIO who denied the request. Section 19(8)

provides that a CIC or SIC, while deciding, has the power to:

(a) require the public authority to take such steps as may be necessary to

secure compliance with the provisions of the RTI Act, including –

(i) provide access to information, if so requested, in a particular

form;

(ii) appoint a CPIO or SPIO, as the case may be;

(iii) publish certain information or categories of information;

(iv) make necessary changes to its practices in relation to the

maintenance, management and destruction of records;

6 Chief Information Commissioner v. State of Manipur, (2011) 15 SCC 1 7

(v) enhance the provision of training on the right to information for

its officials;

(vi) provide it with an annual report in compliance with clause (b)

of sub-section (1) of section 4;

(b) require the public authority to compensate the complainant for any loss or

other detriment suffered;

(c) impose any of the penalties provided under this Act; and

(d) reject the application.

12. The SICs exercise broad powers, including among them the power to conduct

inquiries into complaints from any person, hear appeals, and impose

penalties. They decide on matters and issues pertaining to the right to

information. In Union of India v. Namit Sharma, 7 this Court held that the

Information Commissions are required to act in a fair and just manner while

following the procedure laid down in Sections 18, 19, and 20.

13. Section 26(3)(b) requires the appropriate government, if necessary, to update

and publish guidelines referred to in sub-section (2) including the postal and

street address, phone and fax number and, if available, electronic mail

address of the CPIO or SPIO, as the case may be of every public authority

appointed under Section 5(1).

14. In pursuance of the order issuing notice, counter affidavits have been filed by

SICs of Arunachal Pradesh, Assam, Bihar, Goa, Haryana, Himachal Pradesh,

Karnataka, Madhya Pradesh, Manipur, Sikkim, Tamil Nadu, Uttar Pradesh,

7 (2013) 10 SCC 359

8 and West Bengal. The position in regard to the SICs has been summarized

in the following tabulation contained in the rejoinder:

S.No. Name of SIC Whether hybrid Para mode adopted of CA 1 Himachal Pradesh Yes 4 (R-12) 2 Karnataka (R- 14) Yes 2 3 Haryana (R-11) Yes 4 4 Sikkim (R-25) No 5 5 Punjab (R-35) Yes 6 6 Arunachal Pradesh No Mention - (R-48) 7 Tamil Nadu (R-42) Yes 12-13 8 Uttar Pradesh (R No 17 29) but is not opposed to virtual hearing 9 Bihar(R-7) Yes 6 but discretion to conduct hearing through hybrid mode be left to SIC 10 Manipur (R-18) Yes 4 11 Goa (R-9) No 7&8 12 West Bengal (R-38) Yes 3(iv) 13 Madhya Pradesh (R Yes 6 -43)

15. The CIC conducts its proceedings in a hybrid manner, which ensures ease of

access to citizens in pursuing their complaints and appeals under the RTI Act.

However, from the material which has been placed before the Court in the

counter affidavits filed by some of the SICs, it is evident that there is a

variation in the practice which is followed across different States.

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16. The RTI Act is based on the principle that citizens have a right to know about

the functioning of every public authority. Correspondingly, it also places a duty

on the public authorities to act in a responsible and transparent manner by

providing information about their functioning to the citizens. 8 In the process,

the legislation promotes the ideals of open government and democracy. 9

Democracy requires an informed citizenry and transparency in functioning for

the electors to hold the elected representatives to account. 10 Thus, the right

to information promotes the values of participative democracy and

accountability.

17. The right to information is not merely a statutory right for, it has also been

recognized as a constitutional right. The freedom of speech and expression

under Article 19(1)(a) includes the right to acquire and disseminate

information. 11 The right to information has also been recognized as a facet of

Article 21. 12 This intersection with the constitutional right entails a heightened

burden and responsibility on the CIC and SICs to ensure that individuals get

access to information on matters of public concern under the provisions of the

RTI Act. In Anjali Bharadwaj v. Union of India, this Court held that the

existence of the CIC and SICs is imperative and vital for the smooth working

of the RTI Act. 13 Recently, a three-Judge Bench of this Court in Kishan

8 State of U P v. Raj Narain, (1975) 4 SCC 428 9 S P Gupta v. Union of India, 1981 Supp SCC 87 10 Dinesh Trivedi v. Union of India, (1997) 4 SCC 306 11 Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of

Bengal, (1995) 2 SCC 161 12 Reliance Petrochemicals Ltd v. Proprietors of Indian Express Newspapers, Bombay Pvt Ltd, (1988)

4 SCC 592 13 (2019) 18 SCC 246

10 Chand Jain v. Union of India14 observed that the CIC and SICs have a

prominent place under the RTI Act and they must exercise their powers and

functions keeping in mind the purpose and object of the legislation.

18. The RTI Act provides for setting up of Information Commissions for providing

effective access to justice to citizens to agitate their grievance of perceived

breaches of the right to information by public authorities. Under the scheme

of the RTI Act, any person aggrieved by the denial of information under

Section 7 can approach the SICs to seek redressal. In more than one way,

the SICs are authorities empowered to redress and remedy the grievances of

citizens.

19. Access to justice is a right of constitutional purport which signifies that

individuals have effective means to approach legal institutions to seek

appropriate legal remedies. The ability to access legal institutions empowers

individuals to understand and exercise their legal and constitutional rights.

Access to justice enhances the quality of human life and, therefore, is an

important facet of right to life under Article 21. In Anita Kushwaha v. Pushap

Sadan, 15 a Constitution Bench of this Court held that access to justice is also

a facet of Article 14, which guarantees equality before law and equal

protection of laws to both the citizens and non-citizens alike. As a result, the

inability of any person to access courts or any other adjudicatory mechanism

14 2023 SCC OnLine SC 1021 15 (2016) 8 SCC 509

11 provided for determination of rights and obligations due to institutional

inadequacy is bound to result in a denial of right to equality.

20. Article 39A of the Constitution recognizes the rights of citizens to equal justice

and free legal aid. Reading Articles 14, 21, and 39A harmoniously, it is evident

that is the constitutional duty of the organs of the state to provide individuals

with the means of access to justice in an effective and efficient manner. 16

Particularly, it is duty of the Government to raise the standards of

infrastructure by adopting technology to make our institutional processes

accessible and inclusive.

21. The recent technological advancements in terms of video-conferencing must

be used to promote inclusion of people living in remote areas within the fold

of the justice delivery mechanism. Physical courts require the litigants and

parties living in remote areas to travel long distances to appear before the

court. With increasing costs of travel and other related expenses, video-

conferencing solutions provide a cost-effective and efficient alternative to the

physical courts. Technology allows us to create and use a “virtual courtroom”

which is as real as any physical courtroom. In more than one-way, virtual

courts democratize our legal processes by expanding the courtroom area

beyond the walls of the courtroom. In Swapnil Tripathi v. Supreme Court of

India, it was observed that technological solutions can be a tool to actualize

the right of access to justice by providing virtual entry to the litigants in the

courtroom.17 However, virtual courtrooms are not just restricted to allowing

16 Brij Mohan Lal v. Union of India, (2012) 6 SCC 502 17 (2018) 10 SCC 639

12 litigants to virtually enter courtrooms; they also allow citizens to participate

effectively in the court proceedings. The transcendental effect of technology

is not only to further the constitutional right of individuals to access justice,

but it also strengthens the rule of law and democracy.

22. It is a constitutional duty of every adjudicatory institution, may it be courts,

tribunals, or commissions, to adopt technological solutions such as video-

conferencing and make them available to litigants and the members of the

Bar on a regular and consistent basis. The use of technology is no longer an

option. Properly deployed for the purpose of conducting hybrid or virtual

hearings, technology has the potential to ensure access to justice by obviating

the need for citizens to travel long distances to secure the right of being heard.

23. In view of the above discussion, we are of the considered view that access to

the Information Commissions is integral to securing the right to information,

which is a necessary concomitant of right to equality under Article 14, the

freedom of speech and expression under Article 19(1)(a) of the Constitution,

and the right to life under Article 21. Accordingly, we direct that all SICs across

the country must provide hybrid modes of hearing to all litigants for the

hearing of complaints as well as appeals. All SICs must provide an option for

availing of a hybrid mode of hearing which shall be at the discretion of the

applicant, or as the case may be, the appellant. The links for availing of the

option must be stipulated in the daily cause list of the Information

Commissions across the country. This shall be operationalized no later than

by 31 December 2023.

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24. That apart, there can be no gainsaying the fact that e-filing provides round

the clock access to courts, and in the process, facilitates the convenience of

lawyers and litigants.18 We direct that all SICs must ensure that e-filing of

complaints and appeals is provided in a streamlined manner to every litigant.

Steps should also be taken having regard to the provisions of Section 26 of

the RTI Act to ensure that service is effected on the Public Information Officers

through the electronic mode. This shall also be implemented by 31 december

2023.

25. All Central and State Ministries shall take steps within a period of one month

from the date of this order to compile the email addresses of the Central and

State Public Information Officers which shall be furnished to the CIC and to

all the SICs, as the case may be.

26. In order to facilitate the implementation of this order, we direct that the

Secretary, Department of Personnel and Training shall convene a meeting of

all the Central and State Information Commissioners within a period of one

month from the date of this order. Comprehensive modalities for the

implementation of the above directions shall be set up.

27. All the State Governments shall cooperate in the implementation of the order.

The State Governments shall, where funds are required, ensure provision of

necessary funds to all the SICs for setting up the infrastructure for conducting

virtual hearings. The CIC and SICs would be at liberty to avail of the facilities

18 M P High Court Bar v. Union of India, 2023 SCC OnLine SC 365

14 which have been provided by the NIC for setting up the websites on the S3

WAS Platform which provides for ease of access in the electronic mode.

28. We are hopeful that with the fulfilment of the above directions, the

implementation of the RTI Act would be streamlined to facilitate access to

justice and information to citizens.

29. The writ petition is accordingly disposed of.

30. This Court wishes to record its appreciation of the assistance which has been

rendered by Mr. Kishan Chand Jain on the one hand and Mr. K. M. Natraj,

Additional Solicitor General, on the other.

31. Pending applications, if any, stands disposed of.

……...…………........………………....…CJI.

[Dr Dhananjaya Y Chandrachud]

…...…...….......………………………..…..J. [J B Pardiwala]

…...…...….......…………….………....…..J. [Manoj Mishra]

New Delhi;

October 09, 2023 GKA

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