SC on effect of non-obstante clause in subsequent general enactment

The Hon’ble Supreme Court, on 4th March 2020, in the matter of Chief Information Commissioner v. High Court of Gujarat and Another pronounced that a special enactment or rule cannot be held to be overridden by a later general enactment simply because the latter opens up with a non-obstante clause, unless there is clear inconsistency between the two legislations. 

The Hon’ble Supreme Court  observed that:

If the High Court Rules framed under Article 225 provide a mechanism for invoking the right to information in a particular manner, the said mechanism should be preserved and followed. The said mechanism cannot be abandoned or discontinued merely because the general law – RTI Act has been enacted. (Para 27)

The object of the RTI Act itself recognizes the need to protect the institutional interest and also to make optimum use of limited fiscal resources and preservation of confidentiality of sensitive information. The procedure to obtain certified copies under the High Court Rules is not cumbersome and the procedure is very simple – filing of an application/affidavit along with the requisite court fee stating the reasons for seeking the information. The information held by the High Court on the judicial side are the “personal information” of the litigants like title cases and family court matters, etc. Under the guise of seeking information under the RTI Act, the process of the court is not to be abused and information not to be misused. (Para 28)

While seeking information or certified copies of the documents, the High Court Rules which require the third party to a proceeding to file an affidavit stating the reasons for seeking the information, the same cannot be said to be inconsistent with the provisions of the RTI Act in as much as the rejection if any, made thereafter will be for the very reasons as stipulated in Section 8 of the RTI Act. (Para 29)

Suo motu disclosure of information on important aspects of working of a public authority is therefore, an essential component of information regime. The judgments and orders passed by the High Courts are all available in the website of the respective High Courts and any person can have access to these judgments and orders. Likewise, the status of the pending cases and the orders passed by the High Courts in exercise of its power under Section 235 of the Constitution of India i.e. control over the subordinate courts like transfers, postings and promotions are also made available in the website. In order to maintain the confidentiality of the documents and other information pertaining to the litigants to the proceedings and to maintain proper balance, Rules of the High Court insist upon the third party to file an application/affidavit to obtain information/certified copies of the documents, lest such application would reach unmanageable proportions apart from the misuse of such information. (Para 33)

The non-obstante clause of the RTI Act does not mean an implied repeal of the High Court Rules and Orders framed under Article 225 of the Constitution of India; but only has an overriding effect in case of inconsistency. A special enactment or rule cannot be held to be overridden by a later general enactment simply because the latter opens up with a non-obstante clause, unless there is clear inconsistency between the two legislations. (Para 36)

In the absence of inherent inconsistency between the provisions of the RTI Act and other law, overriding effect of RTI Act would not apply. (Para 43)

Copy of judgment: Judgement_04-Mar-2020

-Adv. Tushar Kaushik

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