Saturday, January 22, 2011

Right to Information and Copyright Infringement: Delhi HC Cracks the Whip on DMRC

So the pride of Delhi, DMRC says:

 “I am not an instrumentality of the State, I am entitled to the protection offered to a “ third party” under Section 8(1)(d) of the Right to Information Act and also to the exemption provided to prevent copyright infringement under Section 9 of the RTI Act”

Delhi High Court says:

“No way! You are an arm of the State within the meaning of Article 12 of the Constitution! You dare not hide behind the RTI to conceal your faulty designs which took the lives of 6 people!”

This, in a nutshell, captures the decision of the Delhi High Court delivered on December 24, 2010.

What exactly are the facts? And what are these RTI provisions the DMRC wanted to hide behind?

An architect, Sudhir Vohra, invokes the RTI to seek “all structural drawings of both the pile foundation and the superstructure, including all steel reinforcement details, foundation details, engineering calculations and soil tests", pertaining to the cantilevered bracket of Metro Pillar No. 67 which collapsed on 12th July, 2009 resulting in the death of six persons and injury to several others”

DMRC rejects the RTI application citing Sections 8(1)(a),(d) and (h). Let’s see what Section 8 says:

8. Exemption from disclosure of information.-
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;

(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;

(h) information which would impede the process of investigation or apprehension or prosecution of offenders;

I can understand that sub-clause (d) makes for a decent legal argument (even if erroneous), but how is sub-clause (a) even relevant to the case? How does disclosure of the designs prejudicially affect the “sovereignty and integrity” of India?! (unless the DMRC fears that disclosure of the faulty designs could incite members of the public into committing an offence..which would be a justified fear...)

As for sub-clause (h), I really can’t fathom how sharing the designs with a member of the public, and that too an architect, can impede the process of investigation of the accident by the police...sometimes I think parties just miss the point about litigation; it isn’t just about the law, it has got almost everything to do with public perception of a stance taken by a party, even if it is rooted in law. 

And Courts too aren’t completely immune to these perceptions, so the sensible thing to do would be to take a stance which is balanced, and not anything and everything that is available under a statute.

As far as sub-clause (d) is concerned, the Court categorically held that DMRC, being an agency of the State, did not fall within the meaning of “third party”. Even if it did, I would think the larger public interest warrants disclosure of the information because in this country, you just can’t assume that an investigation by the establishment (particularly of its own conduct) would be independent and reliable. So disclosure must be made to other members of the public who wish to probe such information with a fine-toothed comb.

On Section 9, which reads thus:

9. Grounds for rejection to access in certain cases- Without prejudice to the provisions of Section 8, a Central Public Information Officer or State Public Information officer, as the case may be may reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State

the Court again clearly held that Section 9 vested the State with the right to reject a request for information only if its disclosure involved or amounted to infringement of the copyright subsisting in a person other than the State. Since the Court had already deemed DMRC as falling within the State, Section 9 was held inapplicable to it.

What surprises me is that an organisation helmed by someone so scrupulous as Mr.E.Sreedharan (inset), has taken a stance which goes against the very values he professes and practices. 

Anyways, this judgment was delivered by one of the most erudite Judges I have heard and seen in action- Hon’ble Justice Muralidhar. It is an absolute delight and education to see Justice Muralidhar apply his incisive mind to a case and explain his reasons for interpreting a provision of the law in a particular manner. Not just that, his judgments have an altruistic tone to them, which are finely balanced. This makes them all the more delightful to read. 

One hopes we have more of his breed in our Courts

I thank Sneha Jain for sharing this update with me!

No comments:

Post a Comment