Ex – parte orders of the Maharashtra State Information Commissioners – hit by delegation of statutory powers and violation of principles of natural justice

The right to information is a fundamental right protected under Article 19(1) of the Indian Constitution and the Right to Information Act 2005 is to streamline this right. However, looking at the recent orders/decisions/procedures of the State Information Commissioners (SIC) of Maharashtra, one is compelled to conclude that there is either lack of display of legal acumen or scant regard to the duty imposed by the statute. What is concerning is the fact that it is leading to the failure of attaining the ends of justice for the RTI applicants and complainants.

Orders under Question

This article intends to analyse the legality of certain orders passed by the SIC, Maharashtra State, under the signature/authority of the Deputy Secretary of the State Information Commissioners, rejecting applications under section 18 and 19(3) of the RTI Act 2005 without a hearing (ex parte), on the ground of non – maintainability relying on Supreme Court citations. The said rejection are signed by the Deputy Secretary, himself, with a mention in the order that it is approved by the Commissioner. The immediate question at hand is whether the prescribed statutory procedure is being followed? and whether principles of natural justice are being excepted from the procedural provisions?

Statutory Provisions

Section 19(3) of the RTI Act, provides for a second appeal before the State Information Commissioner and S.18 provides powers to the Commissioner to dispose a complaint. If the appeal is in favour of the appellant, the PIO is bound to provide information, as the order passed under section 19(3) is final and binding. However, if the PIO does not comply with the order, then the aggrieved appellant has the remedy to file a complaint u/s 18 of the Act. Both procedures u/s 19(3) and S.18 are statutorily quasi-judicial in nature, warranting strict adherence to the principles of natural justice namely upholding the right to be heard (Audi Alteram Partem). The Commissioner after hearing both the parties can pass orders for disclosure/provision of information or reject the appeal u/s 19(3) or penalise the PIO u/s 20 using powers u/s 18 as per the merits of the case.

The Relevant Provisions of the RTI Act 2005

S.19 (3) of the RTI Act 2005 reads,

‘19. (1) Any person who, does not receive a decision within the time specified in subsection (1) or clause (a) of sub-section (3) of section 7, or is aggrieved by a decision of the Central Public Information Officer or State Public Information Officer, as the case may be, may within thirty days from the expiry of such period or from the receipt of such a decision prefer an appeal to such officer who is senior in rank to the Central Public Information Officer or State Public Information Officer as the case may be, in each public authority:

.

.

.

(3) A second appeal against the decision under sub-section (1) shall lie within ninety days from the date on which the decision should have been made or was actually received, with the Central Information Commission or the State Information Commission:..’

S.18 confers special powers on the Commissioners to inquire into complaints. This gives the commissioners the powers to enforce the Second Appeal Order.

S.18(3) reads,

‘(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 court while trying a suit under the Code of Civil Procedure, 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’

The Procedure Followed by the SIC, Maharashtra

Under the provisions of S.19(3), notices for hearing are sent to both the parties, and after hearing both the parties, an order is passed by the Commissioner, as per the merits of the case. When a complaint u/s 18 is filed for non – compliance of an order u/s 19(3), the parties are called for a preliminary inquiry/verification to ascertain whether the order u/s 19(3) has been complied with or not? and this inquiry/verification is conducted by the Deputy Secretary to the Commissioner. If it is found by the Deputy Secretary, that the order u/s 19(3) is not complied with, the matter is placed before the Commissioner as a quasi-judicial proceeding u/s 18 of the Act.

Customarily, after a complaint is filed u/s 18, during the preliminary inquiry/verification, the Deputy Secretary’s job is to only ascertain whether the information has been provided by the PIO in compliance of the second appeal order u/s 19(3)? and nothing beyond. The Deputy Secretary can go no further than this ascertainment, so that he can put up the matter before the Commissioner.

However, when the Deputy Secretary rejects a complaints u/s 18 and second appeals u/s 19(3) on the grounds of non-maintainability citing Supreme Court and High Court precedents, under his signature and without a hearing, then the question of the legality of such order definitely raises its head?

Why the procedure followed is impermissible in law?

Primarily, the statutory powers cannot be delegated is a well-settled law pronounced through a catena of judgements by the Apex Court. The legal maxim ‘delegatus non potest delegare’ (“one to whom power is delegated cannot himself further delegate that power”) defines this principle in the sphere of constitutional and administrative law.

To simplify, it means that if a statute confers power on a particular authority then that authority cannot delegate that power to another unless the delegation is expressed or necessarily implied by the statute itself. As far as quasi-judicial powers are concerned the provisions with respect to delegation of powers are to be strictly interpreted. The ‘judicial’ process in a quasi-judicial matter no way can be delegated. Not just that, it is also well-settled law that such delegated action can also not be ratified by the authority in whom the statutory power rests. Such powers if exercised by any other authority/officer to whom the statute has not conferred the statutory powers is deemed ultra vires (action beyond one’s legal power or authority) and void ab initio (to be treated as invalid from the outset) and deemed to be without any force of law.

In any judicial or statutory quasi-judicial proceedings, when an application/complaint is filed, the preliminary issue that may arise, is the maintainability of the application/complaint in the light of the statutory provisions. The cause of action of this present analysis, as stated above, are the orders of the Maharashtra State Information Commissioners which are signed/endorsed by the Dep. Secretary to the SIC and not the

Commissioner, himself. Without going into the merits of the complaints and second appeal matters, the fact needs to be highlighted that the orders signed by the Dep. Secretary to the SIC are orders where the complaints/appeals have been rejected by citing Supreme Court precedents without any hearing. The interpretation of these citations is misleading and erroneous is altogether another issue which again the author does not want to touch here. Also, there is no reason to believe that Information Commissioners of all regions of Maharashtra are not following the same unusual procedure as the State Information Commission is not maintaining any statistics on such orders.

Principles of Natural Justice Bypassed

The most unusual part of the entire issue i.e. whether any hearing is given to the appellant/complainant, before such orders are issued, rejecting the applications both u/s 18 and 19(3) on the ground of non – maintainability? The answer is ’NO’. The next question that follows is, is not the procedure followed (without a hearing), ruthlessly trample upon principles of natural justice? namely the well-settled law of ‘Audi Alteram Partem’, the ‘right to be heard’.

The right to a fair hearing cannot be excluded and there is nothing in the Act and in the circumstances which necessitates the exclusion of this rule. Not to forget is that the Act in question is a welfare legislation to uphold a fundamental right and the relevant provisions under which the orders have been passed u/s 19(3) and u/s 18 mandates hearing the aggrieved party in strict adherence to the rule of ‘right to be heard’.

Similarly, second appeals under section 19(3) are being rejected outright, without a hearing,  and orders being signed by the Deputy Secretary and again with a statement ‘that the order has been approved by the State Information Commissioner’. These orders reflect judicial application of mind by the Dep. Secretary, substituting the SIC and is hit both by the violation of principles of natural justice and delegation of statutory powers. What is most unacceptable and striking is the fact that there is no notice served or reply sought thus discarding all well-settled laws which ensure rule of law. These orders are nothing but disposal of the complaints/appeals by the Deputy Secretary himself on behalf of the Commissioner, without a hearing, either before the Dep. Secretary or the SIC. Even otherwise, the orders passed without a hearing, are hit by the exception to the principles of natural justice. The mention of the statement that the order has been approved by the SIC does not cure the basic defect of bypassing principles of natural justice and statutorily prescribed procedure.

In a nutshell, such orders signed by the Dep. Secretary and purportedly approved by the Information Commissioners are void ab initio,

  • As they bypass/substitute statutorily prescribed procedure;
  • As it is well settled that if a statute prescribes a procedure, the procedure has to be followed (Haresh Dayaram Thakur vs State Of Maharashtra, SC, 2000);
  • As principles of natural justice cannot be excluded from quasi-judicial proceedings envisaged in the Act;
  • As statutory powers cannot be delegated is a well-settled law (Sahni Silk Mills (P) Ltd vs E.S.I. Corpn., SC,1994);
  • As that part of the quasi-judicial proceedings which requires judicial application of mind cannot be delegated;
  • As the Act is a piece of welfare legislation to protect a fundamental right;
  • As the entire procedure followed is an abrogation of the rule of law and arbitrary and bound to cause miscarriage of justice;
  • As the powers so exercised by the Dep. Secretary are ultra vires of the Act, rendering them void ab initio;
  • Any order under the Act, without following the ‘Audi Alteram Partem’ rule is uncalled for, and without any judicial justification.

Now the question is, if the Commissioner himself signs such orders, would they then be  termed, as not hit by the argument made? The answer is ‘No’. The signing of the orders by the Commissioner will in no way make them legally acceptable, as they would also similarly be hit by bypassing of the principles of natural justice and prescribed statutory procedure.

Quasi-judicial orders cannot be reviewed is again settled law. However, the said orders being void ab initio, for the grounds outlined, are a nullity in the eyes of the law and if withdrawn, will not hit the rule of ‘no review’. These orders, thus, deserve to be withdrawn and remanded to their respective stages to attain the objects of the Act and to avoid any unmerited hardships to the aggrieved and harassed appellants/complainants.

The Conclusion

The said orders of the SIC undoubtedly runs contrary to the purpose of the Act. Such orders passed by the Maharashtra State Information Commissioners are enough to shatter the confidence of the Appellants / Complainant, on the Commissioners. These orders not only frustrate the Act but also the Appellant / Complainant. A welfare legislation to empower the common citizens is thus being rendered unavailable. The concerning part is that the aggrieved citizens, put to unmerited hardships cannot be wronged if they infer that it’s a strategy to favour the public authorities and this inference is fortified by the fact that all Information Commissioners in Maharashtra are former bureaucrats and there is no reason to term their inference as unreasonable. As regarding the merits of these void orders, the author intends to deal with it some other time.

The appointing authorities of the Information Commissioners in Maharashtra would do a great favour on the citizens of Maharashtra, if persons other than former bureaucrats/bureaucrats are appointed as SIC’s to maintain public confidence in democratic processes and is the need of the hour. Not that this great state has a dearth of eligible and capable persons for such appointments. But, before this, such void orders in the light of the settled law, deserve to be withdrawn by the Chief Information Commission and reinstated to their respective stages.

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