The judiciary should refrain from granting stays on orders when anyone approaches it after defying a legally valid order. Only respect for courts will not make a better law-abiding nation, respect for the law will
As an information commissioner I have noticed that many public authorities do not obey the statutory orders given by the commission. When faced with action for non-compliance, they obtain a stay from the high court by filing a writ petition. This is the case with statutory orders given by many other authorities, as well. I have been thinking about this common practice in our high courts and feel it does serious damage to the rule of law and encourages disrespect for the law. If anyone—citizen, institution or government department—does not obey a statutory order given with the sanction of law, this should invite the consequences of defying the law. Granting a stay of the original order by a high court provides a legal sanctity to an illegal and undesirable action. When granting these stays on legally valid orders, in most cases no reasons are given, hence there is no evidence of any justification for this protection to the defiance of the law. I strongly feel that any standard action of an instrumentality of the state which may promote lawlessness must be opposed and an attempt made to seek correction of such action. Many times the lawyers hired in obtaining such stays charge between Rs1 lakh and Rs5 lakh for an appearance. This money is paid from public funds to deny information to the public and defy legally valid orders in the name of the public. This cannot be considered to be in public interest or legally permissible. Though my proposition appears to be logical and self-evident, I am quoting some Supreme Court pronouncements in support of this.
The Supreme Court in Prithawi Nath Ram Vs State of Jharkhand & Others Appeal (Civil) No. 5024 of 2000 in its judgment dated 24 August 2004 has stated: “If any party concerned is aggrieved by the order which in its opinion is wrong or against rules or its implementation is neither practicable nor feasible, it should always either approach to the court that passed the order or invoke jurisdiction of the appellate court. Rightness or wrongness of the order cannot be urged in contempt proceedings. Right or wrong the order has to be obeyed. Flouting an order of the court would render the party liable for contempt. While dealing with an application for contempt the court cannot traverse beyond the order, non-compliance of which is alleged. In other words, it cannot say what should not have been done or what should have been done. It cannot traverse beyond the order. It cannot test correctness or otherwise of the order or give additional direction or delete any direction. That would be exercising review jurisdiction while dealing with an application for initiation of contempt proceedings. The same would be impermissible and indefensible.” I think it is logical to deduce from this, that if flouting of an order invites contempt proceedings, a stay on an order granted after the order is defied has no legal basis. Such a stay is not in the interest of nurturing respect for the law.
Further, in Prakash Narain Sharma Vs Burma Shell Cooperative Housing AIR 2002 SC 3062, the Supreme Court of India has observed that a judicial order, not invalid on its face, must be given effect entailing all consequences, till it is declared void in a duly constituted judicial proceeding. Justice SN Variava in Ghaziabad Development Authority Vs Balbir Singh (2004)- (002)- CPJ- 0012- SC stated that unless there is a stay obtained from a higher forum, the mere fact of filing an appeal or revision will not entitle a person who is required to pay the penalty to not comply with the order of the lower forum. Even though the person may have filed an appeal or revision, if no stay is obtained or if a stay is refused, the order must be complied with. In such cases, the higher forum should, before entertaining such appeal or revision, ensure that the order of the lower forum is first complied with.
It appears to me to be self-evident that no organ of the state should allow or encourage defiance of the orders of any statutory authority. There are also the judicial pronouncements in support of my contention, which I have quoted above. I hope there can be a public discussion on this matter and the judiciary would refrain from granting stays on orders when anyone approaches it after defying a legally valid order. If there are extenuating reasons for granting such a stay, they must be provided in the order. Our present practice in the courts favours those who can spend money on hiring lawyers. In most of these cases it is the public authority which spends the money. Thus public money is spent to either deny information to the public or protect the guilty officer from paying penalty! This is done by refusing to obey legally valid orders. This needs to be stopped. Only respect for courts will not make a better law-abiding nation, respect for the law will.
The views expressed here are the author’s own personal views
(Shailesh Gandhi is a Central Information Commissioner; he is the first RTI activist to be on the central commission. An IIT Mumbai alumni, the author has closed down his business to devote his time to social causes, especially the RTI Act.)
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