The Gujarat High Court today held that Gujarat Police Rules that come under Special Branch and are classified on their website as being “sensitive information” cannot be kept from public access.
Justice Biren Vashinav made this observation while hearing a petition seeking disclosure of Rules under Gujarat Police Act as well as other laws that govern the Gujarat Police and directed that they be made readily available on the website for public access.
The petitioner, Swati Goswami, an independent copywriter, was denied permission multiple times by several police stations for carrying out peaceful protests not just against the Citizenship Amendment Act but also during the Hathras case. While speaking to Sabrang India, Swati said, “They always used some excuse some excuse to deny permission. Many a times I pointed out that pro-CAA rallies were held even by the Gujarat Chief Minster where roads were blocked, and were still allowed. Yet I was being denied permission. I even asked under what Rules were they denying permission. However, I never got a definite response.”
When asked what prompted her to reach out to the High Court she said, “I wanted to get an order that would pressurize them to act and provide the information. The High Court was the best way to go about it. They (the police) think beyond a point they cannot be questioned. I just wanted there to be a larger impact.”
About the petition
The petitioner, Swati Goswami, through her petition sought publication of Rules framed by Ahmedabad Police as well as online access to all the Rules, Regulations, Instructions, Manuals and Records held by them as well. She contended that failure to publish such rules amounts to illegality of the executive action, violation of democracy, rule of law and natural justice and infringement of her rights of free speech and expression and assembly.
After the Citizenship Amendment Act was passed in 2019, she sought permission for a peaceful protest in Ahmedabad. She was denied the same and was detained for a few hours after she carried out the protest despite being denied permission. She then sought to know the Rules under which her permission was processed and asked the Ahmedabad Police Commissioner for a copy of the Rules framed under section 33(1)(o) of the Gujarat Police Act. In March 2020, she received a reply that her request for information was refused. Clause (o) of Section 33(1) empowers the Commissioner to make rules regulating the conduct of and behaviour or action of persons constituting assemblies and processions.
The petitioner’s counsel, BS Soparkar pointed out that some information on the Police website was classified as “for department use only” and even the Acts under which the police function are not uploaded in the website.
The Assistant Government Pleader appearing for the State raised objections to the maintainability of the petition and contended that ‘No fundamental or legal right of the petitioner has been violated’ because of ‘any action or inaction on the part of the respondent’. He further said that the RTI application ought to be dismissed on the grounds of vagueness, ambiguity and absence of cause of action.
Findings of the Court
The court read down section 4 of the Right to Information Act which enumerates the Obligations of Public Authorities. The court observed that RTI Act provides that 17 kinds of information, including the procedure followed in the decision making process, the norms set by it for discharge of its functions and the rules and regulations held by it or under its control in discharging its functions are required to be provided by the authorities.
“Reading sub-section 2 indicates that it shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of subsection 1 to provide as much information suo moto to the public at regular intervals through various means of communications so that the public have minimum resort to the use of this Act to obtain information,” the court held.
The court, after perusing the petition, observed that the Police cannot refuse to produce such rules or orders since it would run contrary to even the section 33(6) of the Gujarat police Act which states that which provides that such rule made be published in the official gazette and in the locality affected thereby.
The court also concurred with the quote in the petition by Lon L Fuller, “there can be no greater legal monstrosity than a secret statute”.
In accordance with mandate under Sec.4 of the (RTI) Act therefore and in light of the fundamental rights guaranteed to the petitioner under Articles 19 and 21 of the Constitution of India, in the opinion of this Court, the petitioner is entitled to the information so provided.
While rejecting the objections of the State, the court held,
“Reading Section 2 (f) with Section 3 and 4 of the Right to Information Act makes it mandatory for the authorities to furnish information and promote transparency. Had the petitioner been supplied with the reasons and the rules under which she was denied permission to protest in 2019, she would have had access to the law of the land and to the decision making process which could enable the petitioner to challenge such information. The stand of the government is that since the information is sensitive, inasmuch, as the Special Branch which gave feedback is exempted from the Information Act is no ground to deny such information.” (emphasis supplied)
The court, while considering the state’s contention that since the end of the information appears to be because the purpose of the protest was political, such information need not be provided, the court opined that it would amount to “killing and smothering the very purpose of the Right to Information Act, which, is evident from the preamble thereof which is to promote transparency in democracy”.
The court thus held thus,
“Para 10.3 Therefore, what is evident on conjoint reading of Sec. 4(1)(b), 4(2), 4(3) and 4(4) of the Right to Information Act is that the petitioner is entitled and so the respondent is under a legal duty to publish information(s) specified in Sec. 4(1)(b) of the Act and evidently, the petitioner is entitled to know the rules framed under Sec.33 of the Gujarat Police Act, so as to know the reasons by which the petitioner was denied permission as in the absence of such knowledge, the petitioner will be handicapped in challenging such permission which will be a direct infringement of his fundamental right and a statutory right to know and access the law of the land which he violated. Desirous of seeking such information, especially the Rules framed under Sec.33 of the Gujarat Police Act, the petitioner in her right is entitled to a writ of mandamus for a direction to seek such information, especially when, it will help what is evidently the purpose of the RTI Act i.e. to receive information so as to know what is the procedure followed in the decision making process the norms set by it for the discharge of the functions by the State and the Rules and Regulations empowering such decision making process.”
The petition was thus allowed and the Ahmedabad Police Commissioner was directed to publish all the rules and orders framed under Sec.33 of the Gujarat Police Act on the website in the manner that the same are made available and accessible to the public and also directed that the requirements of Sec.4 of the Right to Information Act are complied with and accordingly make available on their website the texts of all the Rules, Regulations, Instructions, Manuals and Records held by it or under its control or used by its employees for discharge of its functions.
This judgement is a huge step forward to the citizen’s right to know and also a step forward in questioning the police, that, is increasingly, simply denying the rights of citizenship to protest. (guaranteed by Article 19 of the Constitution)
The complete judgement may be read here:
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