writ as per Article 226 can be sought instead of appeal and second appeal
THE HIGH COURT OF GUJARAT AT AHMEDABAD
In R/SPECIAL CIVIL APPLICATION NO. 11826 of 2020,
SWATI RAJIV GOSWAMI
Versus
COMMISSIONER OF POLICE, AHMEDABAD, the
HONOURABLE MR. JUSTICE BIREN VAISHNAV
held as
10 Coming to certain preliminary objections raised on
behalf of the respondent State which need to be
answered, essentially, it is the stand of the State
Government that the petition is not maintainable because
no fundamental right is violated, that rather than
challenging the rejection of the permission to hold a rally,
a petition is filed seeking rules under Sec.33 of the
Gujarat Police Act, 1951. That the petition is barred by an
alternative remedy inasmcuh as rather than invoking the
jurisdiction under Article 226 of the Constitution of India,
the petitioner ought to have resorted to statutory
remedies provided under the relevant sections of the
Right to Information Act. No right accrues to the
petitioner to get the rules so framed. On the main
objections as to the rights of the parties, it is the case of
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the respondents that the application for holding assembly
is not rejected under the rules framed under Sec.33 of the
Police Act but in accordance with the Notification dated
24.12.2019 issued in exercise of powers under Sec.144 of
the Code of Criminal Procedure read with Sec.37 of the
Police Act. That, the petitioner is not entitled to any
information by virtue of the Notification dated
25.10.2005, by which the Special Branch is one of the
eleven organizations exempted from the purview of the
Right to Information Act.
10.1 The contentions of the State on the preliminary
grounds needs to be rejected. What the petitioner has
sought is to assail the action of the respondents of non
disclosure of Rules, Regulations and Instructions held by
the respondent No.1 or under its control or used by its
employees for discharging its functions. Reading sec.2(f)
with sec.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
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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 feed back is exempted from
the Information Act is no ground to deny such
information. What the authority seem to emphasize is that
since the end of the information appears to be because
the purpose of the protest was political, such information
need not be provided is in the opinion of this Court,
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.
That there are no rules under Sec.33 of the Gujarat Police
Act and therefore no information can be so provided as
the rejection was under another provision seems to be a
misconceived proposition of the State.
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10.2 Decisions cited by the learned counsel for the
petitioner in the case of Himmat Lal K Shah (supra)
and in the case of Gujarat Majdoor Panchayat (supra)
indicate that the respondent No.1 does have the power
and also does publish rules dealing with regulating the
conduct of processions and assemblies. If that be so is a
fact which is not denied, the petitioner is entitled to have
access to such Rules, Regulations, Instructions, Manuals
and Records in light of the provisions of Sec.4 of the
Right to Information Act. What is evident therefore that
the provisions of the Right to Information Act as set out
by the decision in the case of Aditya Bandhopadhyay
(supra), indicates that the provisions of the Act and the
scheme divides information into three categories. It will
be in the fitness of things to reproduce para 59 of the
decision in the case of Aditya Bandhopadhyay (supra),
which reads asunder:
“59. The effect of the provisions and scheme of
the RTI Act is to divide `information' into the three
categories. They are :
(i) Information which promotes transparency and
accountability in the working of every public
authority, disclosure of which may also help in
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containing or discouraging corruption (enumerated
in clauses (b) and (c) of section 4(1) of RTI Act).
(ii) Other information held by public authority (that
is all information other than those falling under
clauses (b) and (c) of section 4(1) of RTI Act).
(iii) Information which is not held by or under the
control of any public authority and which cannot be
accessed by a public authority under any law for the
time being in force.
Information under the third category does not fall
within the scope of RTI Act. Section 3 of RTI Act
gives every citizen, the right to `information' held
by or under the control of a public authority, which
falls either under the first or second category. In
regard to the information falling under the first
category, there is also a special responsibility upon
public authorities to suo moto publish and
disseminate such information so that they will be
easily and readily accessible to the public without
any need to access them by having recourse
to section 6 of RTI Act. There is no such obligation
to publish and disseminate the other information
which falls under the second category.”
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
informations specified in sec. 4(1)(b) of the Act and
evidently, the petitioner is entitled to know the rules
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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.