The Delhi high court has bizarrely exempted state bar councils from the statutory duty to publish their meeting minutes online, on the ground that some of these minutes may contain third party information of a confidential nature.
The court also relaxed the state bar councils’ statutory duty to disclose financial accounts.
Deciding an appeal filed by the Bar Council of Delhi against an order of the Central Information Commission (CIC), Justice Sanjeev Sachdeva wrote in his 14 February judgment that was first reported by LiveLaw:
Perusal of the queries made in the [RTI] show that what is sought is disclosure of the minutes of all meetings of Bar Council. It is this information which has been directed to be put in public domain. The CIC, clearly fell in error in issuing the direction of putting all such information in public domain.
Sachdeva ruled that since it was the function of the state bar councils to conduct disciplinary proceedings against advocates, and also to provide relief funds to advocates on medical grounds, the councils’ full house meetings openly discuss personal information of such advocates in disciplinary and relief cases.
He, therefore found that minutes of the councils’ full house meetings were exempt from public disclosure on the ground of potentially containing confidential third party information.
The judgment states:
11. Perusal of section 6 and also section 36 shows that in its meetings, apart from general function and information, a State Bar Council would be discussing confidential personal matters of advocates. Personal and confidential issues would come up before the Bar Council for consideration. Putting all the minutes in public domain and on the website would imply making public the confidential personal information and also information received by Bar Council in fiduciary capacity.
12. The minutes would also contain personal information about Advocates who seek financial help on medical ground which would clearly be personal information of the third party. Such information clearly cannot be put in public domain.
Senior advocate Arvind Nigam with advocates Uttam Datt, Tarun Sharma and Mikhil Sharda were acting for the Delhi bar council, to which the CIC had issued a show cause notice as to why a penalty should not be imposed on it for violating its statutory duty of disclosing all its meeting minutes.
Justice Sachdeva also excused the Delhi bar council’s failure to supply its complete financial records, on the ground that it had supplied “whatever information was available”.
He wrote in the judgment:
Under section 12, the accounts of the State Bar Council are to be audited and the State Bar Council is obliged to send a copy of the accounts along with the report of the auditor to the Bar Council of India and also cause the same to be published in the Official Gazette.
By publication in the official gazette, the accounts of a State Bar Council, come in public domain.
A more likely interpretation of the law
Relying on Section 4 of the Right to Information (RTI) Act, an RTI applicant had asked for minutes of all the full house meetings of the Delhi bar council held since 2010, and in the absence of a response had appealed to the CIC. Section 4 of the RTI Act makes it mandatory for all public bodies to disclose all their meeting minutes, on their own, on their website.
Under Section 8(j) of the RTI Act, the personal information of third parties can be exempted from disclosure under the Act, unless such information serves the larger public interest.
However, under section 4, “every public authority shall maintain all its records” in a manner that facilitates the right to information under the RTI Act, and subject to its resources it is obligated to even maintain them “computerised and connected through a network all over the country”.
Section 4 then specifically lists 17 different categories of such records, including:
(viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advice, and as to whether meetings of those boards; councils, committees and other bodies are open to the public, or the minutes of such meetings are accessible for public
Furthermore, under section 4(2):
It shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have minimum resort to the use of this Act to obtain information.
The Act therefore clearly implies that personal information exempt from disclosure could be redacted or excluded from any minutes or documents that otherwise ought to be pro-actively published under RTI.
In April 2016 the CIC threatened to impose maximum penalty on Bar Council of India chairman Manan Kumar Mishra, if the BCI continued in its non-compliance of the RTI law by omitting to publish all its meeting minutes online.
Should Sachdeva have recused himself?
The judgment, other than on its face appearing contrary to the spirit and letter of the RTI Act, is especially hard to defend because bar councils have historically been neither known for their belief in transparency nor for their clean hands. Only last year, for instance, a CBI court convicted three Bar Council of India (BCI) and state bar council members for corruption after soliciting bribes from law colleges.
And it was only an RTI filed by Legally India for BCI meeting minutes that revealed in 2015 how the winning bidder to the multi-crore All India Bar Exam (AIBE) contract was blatantly unqualified, had missed application deadlines (as evidenced in doctored meeting minutes) and worse.
However, the argument could be made that Justice Sachdeva, who passed the order, should have recused himself from the matter due to his historically close nexus to the BCI in Delhi while he had been a practising lawyer.
Sachdeva had become a Delhi high court judge in April 2013, having been designated as a senior advocate of the Delhi high court in 2011. And according to Justice Sachdeva’s profile on the Delhi high court website, before becoming a judge he:
Was the Standing Counsel for the Bar Council of India for the Supreme Court of India and the Delhi High Court for over 20 years also appointed as a Senior Panel Lawyer for the Union of India and represented the Union of India in various matters for over 10 years.
Only two weeks ago, Supreme Court Justice Dipak Misra had recused himself for less, standing down from hearing a challenge of the BCI’s age-limit rules, possibly because the BCI standing counsel’s father had once been a contemporary of Misra on a high court’s bench.
Photo by Schlaier.