The Supreme Court has gone to the High Court again, appealing against a CIC order. If it was about the declaration of assets earlier, this time it is to assert the primacy of the Supreme Court Rules over the RTI Act.

The main issue at hand is whether the non-obstante clause in Section 22 of the RTI Act, 2005, overrides the Supreme Court Rules. According to the statutory provision in question, the provisions of the RTI Act are to have effect “notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

Order XII, Rule 2 states that the Supreme Court may provide all documents, records and pleadings associated with a case to anyone who was not a party to the case if good cause is shown for seeking this information and prescribed procedure (including payment of prescribed fees) is duly followed.

Both provisions have been put in place to facilitate transparency and in that sense, are not inherently inconsistent with each other. But there are some crucial differences. Unlike the Supreme Court Rules, the RTI Act provides for a time limit within which such information is sought, offers no discretion if the information in question is covered by the Act and does not require the party to state any reason at all for seeking this information. A system of differential pricing is followed with respect to the payment of fees under the RTI Act.

The CIC has held that since both provisions are two ways of achieving the same end, there is no inconsistency of the sort covered by Section 22 and it is therefore open to the parties to seek information through whatever channel they use. Such an inconsistency does emerge when information is to be mandatorily made available to an applicant under the RTI Act, but is denied to him or her under the Supreme Court Rules. In such a situation, the RTI Act trumps the Supreme Court Rules since Section 22 is then operationalized. Any other interpretation would be a violation of the right to information that has been recognized as a fundamental right by the Supreme Court.

In coming to this conclusion, the CIC discussed two important maxims. The first of these is – lex posterior derogat priori – non est novum ut priores

lages ad posteriores trahantur- which means that an earlier Act must give way to a later one, if the two cannot be reconciled. The CIC held that this was to be done in only those rare situations where no harmonious construction of the two was possible. Thus, both provisions were recognized as valid modes of obtaining information unless there was an obvious conflict of the sort described above.

The other maxim discussed