Book Review: RTI Act - Authentic Interpretation Of The Statute by Shailesh Gandhi & Pralhad Kacheri

Ambiguity is antidote of transparency. Mystery of legal language takes out the possibility of realization of the right and leaves scope for contradictory interpretations facilitating injustice. The Authentic Book on RTI by Sri Shailesh Gandhi and Sri Pralhad Kacheri is easily accessible because it is copyleft, (i.e., not copyrighted) and it is also easy to read and understand. (Note: The hard copy of the book is priced) The authors introduced transparency into RTI Act by removing the ambiguities that crept in because of legalese and its multiple interpretations.The authors strongly pleaded, in preface, for implementation of the RTI Act with positive interpretation of its ‘expression’ as passed by the Parliament. This means that the interpretation contradictory to expressions of the Act on the face of it, if done by any authority like Information Commissions or constitutional courts, should not become impediments in disclosure of information held by the public authorities.The book raised certain critical constitutional challenges. Finality of Commission’s orderNo scope for unending appeals: A critical issue brought out by this book is that whether RTI request should be converted into an ordinary litigation resulting in ‘adjourning’ the finality landing in labyrinths of cases before Constitutional Courts or should it assume finality with the Commission. Whether second appeal should lead to 3rd, 4th and 5th appeals also?Finality and binding nature: Section 19(7) talks about binding nature of the Commission’s order, while Section 23 provided finality to its action. The demand for information generally ends with the RTI Act in second appeal. No further proceedings are contemplated. The judicial review is an additional constitutional remedy available in general, though not mentioned under this Act. The author raised a vital point of constitutional importance that writ under Article 226 cannot be used as ‘third appeal’. There is a slight but definite difference between Article 226 petition for writ of certiorari and the non-existing third appeal. Sometimes this line is getting blurred. That is the matter of the judicial process, and beyond the domain of the Commission. Of course, citizens are free to research examine and challenge whether any ‘difference’ is maintained.State, a big litigant: In foot note 47, the author brought out an important aspect stated by Maria Elena Peris Jean, the former Information Commissioner from Mexico, whether the public authority can file writ petition only in security related matters and in all other matters only denied citizen could litigate in Constitutional courts. This challenge is worth considering in Indian context where the State is found to be biggest litigant, as agreed by the Prime Minister on 2nd November 2016 and endorsed earlier by the Law Commission and National Litigation Policy. The Need for Judicious interpretationParliament’s Constitutionally valid will: If the Parliament’s intention is clearly stated in the simple language of the enactment, which was passed unanimously, assumed to be the will of 594 MPs and 130 crores of people, and when the principles of transparency and RTI were accepted as Constitutionally compatible with the declared and guaranteed fundamental rights, can any authority, including judiciary, give an interpretation contrary to that will of the people? If given, is that valid? This is the most agitating question posed time and again.The Precedent vs Express Legislation: Article 141 makes it clear that it is the judiciary that decides what the law is, though Parliament stated it through that ‘expression’. It is an age-old conflict between two prominent Estates in any Constitutional Democracy- Legislature v. Judiciary. The established practice is that the interpretation by the Constitutional court will prevail over the written text. It is based on the jurisprudential principle of precedent. Article 141 is the codification of this rule. The sources of law include law made by legislation and precedent, besides ‘custom’. This being the position, the meaning of law however simple or reasonable we might assume, will be subjected to the interpretation given by the constitutional court. The power of review under Article 226 and 32 is the basic structure of the Constitution, and the judgment given while exercising that power, is the law (Article 141). This position is not negotiable.Presumption of correctness of order: There is another interesting principle - presumption of correctness of judgment. Unless the ‘wrong’ (so assumed) judgment of SC is reversed in review with such declaration, the ‘wrong’ judgment will prevail as right judgment by default. It’s unfortunate that such interpretation remains ‘authentic’. However there is a need for discussion, criticism and pointing out the glaring mistakes both the legislative and judicial declarations that always being the source of the ‘change’.Whether the precedent continues to be the source simultaneously...

Book Review: RTI Act - Authentic Interpretation Of The Statute by Shailesh Gandhi & Pralhad Kacheri

Prof. M Sridhar Acharyulu

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