Shailesh Gandhi
As Central Information Commissioners presiding over appeals on the Right to Information Act, my colleagues and I have the same conditions of service and salaries as Supreme Court judges . And yet , on several occasions, public authorities do not obey the orders we pass. When they are faced with action for noncompliance, they rush to the High Court and obtain a stay on our order. My question is simple. Long after the deadline for complying with our order has passed, should a person or organisation that has flouted our order get a stay from any court?
Shouldn’t there be some penalty for violating the orders we pass? If not, what value are our orders? Those who violate our orders get legal protection. If the orders of the Central Information Commission can be flouted so blatantly, should not the service conditions and salaries of the Central Information Commissioners be equal to that of a session’s judge?
This is not simply a problem unique to the Central Information Commission. This is the case with orders given by many other statutory authorities as well. For a long while, I have been thinking about this convoluted practice by which an order passed by an authority is first violated and then stayed in the High Court. If anyone,-a citizen, institution or government department,-does not obey a legally valid order, it should invite some punishment. Should those who violate legal orders be allowed to go scot free? When the Court grants a stay on our original order after the order has been violated, it amounts to providing the fig leaf of legal sanctity to an illegal action. When granting such stays, the High Court usually does not give any reasons for doing so.
This means that there is no evidence of any justification for protecting those who defy the law and act in a lawless manner. The lawyers who help obtain a stay in the High Courts are known to charge a whopping Rs 1-5 lakh for a single appearance. I strongly feel that any action by an instrument of the State which diminishes respect for the rule of law must be stopped. What is the legal basis is as laid down by the Supreme Court for these postulates? I trawled through several Supreme Court orders and found that the country’s apex court appears to be similar to my contention. Take for instance a Supreme Court order passed in August 2004 which says, “If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach t h e Court that passed the order or invoke jurisdiction of the Appellate Court. Rightness or wrongness of the order can not be urged in contempt proceedings. Right or wrong the order has to be obeyed. Flouting an order of the Court would render the party liable for contempt. While dealing with an application for contempt the Court can not traverse beyond the order, noncompliance of which is all eged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It can not test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible.” I think it is logical to deduce from this, that if flouting an order invites contempt proceedings, a stay on the order, obtained after flouting it, has no legal basis. Such a stay is not in the interest of nurturing respect for the law. Another Supreme Court order passed in 2002 states almost the same thing. Eight years ago, Justice SN Variava, in the Supreme Court made it clear that unless there is a stay obtained from a higher forum, the mere act of filing an appeal or revision will not entitle a person who is required to pay the penalty to not comply with the order of the lower forum. I think it’s self evident that no organ of the State can allow or encourage the defiance of orders of a statutory authority. If this is allowed to happen, it will be impossible for the state to function. If it makes no difference whether an order passed by bodies like the CIC is followed or flouted, what purpose does it serve to pass orders in the first place? Should the Nation even have such bodies?
I hope that, in a democracy like India, there can be a public discussion on this matter and the judiciary would consider not granting stays on orders when anyone approaches it after defying a legally valid order. If there are strong reasons for granting such a stay, they must be provided in the order. Our present practice in the Courts favours those who can spend money on hiring lawyers. Perhaps we could change it to favour the rule of law. Only respect for Courts will not make a better law-abiding Nation; respect for the law will.
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