"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, December 7, 2015

RTI Act Overrides Arbitration & Conciliation Act but Conciliation Proceedings Are Confidential: CIC

The Chief Information Commission passed an order dt. 08.08.2015 in Rama Aggarwal v. Delhi State Legal Services Authority holding that notwithstanding that the Right to Information Act, 2005 overrode the provisions of the Arbitration and Conciliation Act, 1996, conciliation proceedings were confidential in nature and that the Public Information Officer was not bound to disclose information relating to, or pertaining to, conciliation proceedings in view of Sections 8(1)(e) and 8(1)(j) of the Right to Information Act, 2005.

Factual Background:

Anil and Rama Aggarwal had marital issues and were referred to the Delhi State Legal Services Authority for counselling and conciliation. Later, Rama Aggarwal filed proceedings under the Protection of Women from Domestic Violence Act, 2005 and for divorce. Rama Aggarwal filed an RTI application seeking, among other things, information pertaining to the conciliation proceedings before the Delhi State Legal Services Authority. The PIO of the Delhi State Legal Services Authority and the First Appellate Authority rejected the application (in respect of those queries on the conciliation proceedings).

Question before the CIC

On appeal, the CIC had to decide whether the PIO and the First Appellate Authority were wrong in denying information on conciliation-related proceedings. 

Decision of the CIC:

The CIC took into consideration the relevant provisions under the Hindu Marriage Act, 1955, the UNCITRAL Conciliation Rules (Article 14), the Arbitration and Conciliation Act, 1996 (Sections 70, 75 & 81), the (Delhi) Mediation & Conciliation Rules, 2004 (Rules 20 and 21) and the decisions of the Supreme Court in Haresh Dayaram Thakur v Maharashtra AIR 2000 SC 2281 and Moti Ram v. Ashok Kumar.

The CIC, after discussing Section 75 of the Arbitration & Conciliation Act, 1996 (1996 Act) which provides that notwithstanding anything to the contrary, the parties shall keep all matters relating to the conciliation proceedings confidential, stated that the RTI Act will definitely override the 1996 Act (irrespective of the non-obstante clause).

At the same time, the CIC held that conciliation proceedings would be exempt from disclosure on the ground that information in conciliation proceedings were made available in conciliation proceedings owing to the fiduciary capacity of the conciliator (and the institution administering conciliation). The CIC held:

"As per the traditional definition, a ‘fiduciary’ is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter's benefit within the scope of that relationship. Anything given and taken in confidence expecting confidentiality to be maintained will be information available to a person in fiduciary capacity. Therefore communication made during conciliation proceeding between the parties and also communication between mediator and other parties, qualifies to be made in fiduciary capacity."

Hence, the Court held that the PIO could refuse disclosure of information under Section 8(1)(a) of the RTI Act, which exempts disclosure on the ground that the information was made available to a person in his fiduciary relationship. 

The CIC also held that the proceedings of mediation related to personal information and the disclosure of the same would cause unwarranted invasion of the privacy of the individual concerned, which is a ground for refusing information under Section 8(1)(j) of the RTI Act. 

The CIC also recognised that disclosure of such information on account of larger public interest was allowed but held that it was in larger public interest that alternative dispute resolution (including mediation) proceedings are kept confidential. The CIC held that if mediation proceedings are allowed to be disclosed under the RTI Act, this would result in the parties not adopting such mechanisms thereby resulting in the burdening of the courts. The CIC also held that conciliation proceedings would also include counselling proceedings between spouses. 

On the basis of the above reasoning, the CIC rejected the appeal.

Key Takings:

The decision is correct in holding that mediation proceedings between private persons cannot be disclosed under the RTI Act as this would result in invasion of privacy and persons choosing court based dispute resolution. One of the chief reasons for choosing mediation and other ADR mechanisms is confidentiality. However, question arises whether mediation proceedings between the State and a private person could be afforded the same protection. The question is complicated and requires consideration but this blawgger would lean in favour of disclosure at least after the resolution of the dispute between the State and the private person.

Secondly, Section 22 of the RTI contains a non-obstante clause; so does Section 75 of the 1996 Act. Despite the conflict, the CIC did not provide justification(s) why the RTI Act overrode Section 75 of the 1996 Act. Nevertheless, the decision of the CIC is correct. Perhaps, it could have justified the same by referring to the ratione of the RTI Act and that the RTI Act was a later law.

The CIC has rightly balanced the need for confidentiality of mediation proceedings and the requirement of disclosure under the RTI Act. 

[A subsidiary point is that the CIC has stated that conciliation and mediation are interchangeable expressions thereby adding another authority on the vexing distinction between conciliation and mediation in Section 89 of the Code of Civil Procedure, 1908.]

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