Advocate exclusion from RTI: Why the Supreme Court must settle the conflict

India’s Right to Information (RTI) regime stands at an unusual constitutional crossroads. Over the past two decades, the RTI Act, 2005 has evolved into one of the most effective accountability mechanisms within the country’s democratic framework.

Yet, recent judicial developments reveal a troubling paradox - while courts continue to strengthen transparency obligations of public authorities, interpretive restrictions simultaneously narrow the procedural rights available to citizens seeking information.

Two recent developments illustrate this growing doctrinal tension. First, the Central Information Commission's (CIC) interpretation, drawing on a Madras High Court ruling, bars advocates from filing RTI applications in matters they handle. Second, the Delhi High Court’s sharp reprimand of the Municipal Corporation of Delhi (MCD) for failing to comply with proactive disclosure obligations under Section 4 of the RTI Act.

Together, these developments raise fundamental constitutional questions that arguably require the Supreme Court's authoritative resolution.

The RTI Act uses unusually expansive language. Section 6(1) provides that “any person” seeking information may file an RTI application. The Act explicitly incorporates subject matter exemptions under Section 8 and institutional exemptions under Section 24. Notably, parliament refrained from imposing professional or status-based exclusions.

Despite this legislative clarity, recent administrative practice, supported by judicial interpretation, has begun treating advocates as ineligible to invoke RTI in matters connected to the cases they represent. The underlying reasoning suggests that allowing lawyers to file RTI applications may convert the statute into a professional litigation tool.

This interpretation effectively introduces a professional disqualification that is absent from the statutory text. It raises a core question in constitutional jurisprudence: can judicial interpretation introduce categorical exclusions when parliament deliberately used inclusive language?

The anomaly becomes even more evident in practice. An advocate who files an RTI request in a representative capacity may be rejected. The same advocate, filing the same request as an individual citizen, may succeed. Such an interpretation undermines statutory transparency while incentivising procedural concealment.

The implications of advocate exclusion extend beyond professional inconvenience. They directly affect the operational effectiveness of access to justice.

The Supreme Court has consistently recognised that access to justice forms part of Article 21. In Anita Kushwaha v. Pushap Sudan, the Court emphasised that access to justice must be practical and effective rather than merely theoretical.

In the ground realities of Indian litigation, most litigants lack the capacity to independently navigate administrative disclosure systems. Legal aid lawyers and district practitioners routinely rely on RTI to obtain government records, particularly where traditional discovery mechanisms fail.

Applications under Order XI of the Civil Procedure Code (CPC) frequently encounter procedural delays. Requests under Section 91 of the Criminal Procedure Code (CrPC) are often ignored or indefinitely postponed. RTI introduced statutory timelines, appellate oversight and penalty provisions that significantly enhanced record accessibility.

Restricting advocates' use of RTI, therefore, risks creating structural inequality within the justice delivery system. Litigants with resources may be able to pursue alternative compliance mechanisms, whereas marginalised litigants may effectively lose access to critical evidence.

The advocate exclusion also invites scrutiny under Article 14. Constitutional jurisprudence requires that any classification satisfies the twin tests of intelligible differentia and a rational nexus to the legislative objective.

Here, the objective of the RTI Act is to promote transparency and accountability. Denying access solely on the basis of professional status appears difficult to justify within this framework. Identical information remains accessible when sought by an individual citizen, but becomes restricted when sought by a legally trained representative acting on behalf of another citizen.

Such classification risks being characterised as arbitrary, particularly when the statute itself does not contemplate professional restrictions.

The primary justification advanced for advocate exclusion is the potential misuse of RTI by legal practitioners. However, constitutional proportionality requires that restrictions on statutory rights must be narrowly tailored and least restrictive.

The RTI Act already contains safeguards addressing misuse. Section 7(9) permits rejection of disproportionate requests. Section 8 protects sensitive information from disclosure. The appellate framework provides supervisory oversight.

A blanket professional prohibition, therefore, appears disproportionate. It restricts legitimate use while failing to eliminate misuse, which may simply shift into informal channels.

In contrast to the restrictive interpretation emerging in advocate exclusion cases, the Delhi High Court’s recent judgment concerning the MCD reinforces the foundational philosophy of the RTI Act.

In a public interest litigation (PIL) filed by the Centre for Youth, Culture, Law and Environment, the Court examined MCD’s failure to proactively disclose legislative proceedings, resolutions, and committee records. The Bench, led by Chief Justice DK Upadhyaya and Justice Tejas Karia, expressed concern that even two decades after the enactment of the RTI Act, statutory obligations under Section 4 remained unfulfilled.

The Court rejected MCD’s reliance on provisions of the Delhi Municipal Corporation Act to justify non-disclosure, emphasising that municipal statutes cannot dilute the transparency obligations imposed under the RTI Act. It directed the civic body to file compliance affidavits, signalling judicial recognition of systemic administrative opacity.

The MCD judgment highlights Section 4 as the philosophical cornerstone of RTI. The provision envisages a governance framework in which public authorities proactively make information available to the public, thereby reducing dependence on individual RTI applications.

However, compliance with Section 4 has historically been weak across public institutions. The Delhi High Court’s intervention reflects its recognition that transparency cannot remain merely reactive. It must be institutionalised through voluntary disclosure.

This interpretation aligns with the constitutional values of participatory governance and administrative accountability.

The co-existence of advocate exclusion and proactive disclosure enforcement reveals an emerging doctrinal conflict. While courts are strengthening institutional transparency obligations, procedural avenues enabling citizens to access information through professional assistance are being restricted.

This duality risks creating a transparency framework that is theoretically robust but practically inaccessible.

The conflict between inclusive statutory language and restrictive judicial interpretation necessitates authoritative clarification by the Supreme Court. The issues involved raise fundamental constitutional questions:

• Can courts introduce professional exclusions into a rights-based statute framed in universal language?

• Does advocate exclusion violate Articles 14 and 21?

• Can concerns regarding misuse justify categorical professional disqualification?

• How should courts reconcile proactive disclosure obligations with procedural access rights?

The resolution of these questions will determine whether RTI continues to function as a citizen-centric accountability mechanism or evolves into a technically accessible but functionally restricted statute.

The Supreme Court has repeatedly recognised the right to information as an essential component of Article 19(1)(a). RTI represents legislative recognition of this constitutional value.

Transparency statutes operate as instruments of democratic accountability. Their effectiveness depends not merely on statutory existence, but on functional accessibility. Restricting professional facilitation of information access risks diluting the enforcement of transparency.

Simultaneously, judicial insistence on proactive disclosure reinforces that transparency is not an optional administrative practice but a constitutional governance norm.

India’s RTI regime is undergoing a significant interpretive transition. Judicial decisions are simultaneously strengthening institutional transparency obligations while narrowing procedural access.

The phrase “any person” in Section 6 represents a conscious legislative commitment to universal accessibility. Introducing professional disqualifications risks undermining both statutory fidelity and constitutional equality.

The Supreme Court now stands uniquely positioned to reconcile this emerging conflict. Its intervention can restore doctrinal coherence, protect access to justice and reaffirm RTI as a cornerstone of democratic accountability.

The future credibility of India’s transparency framework may well depend on how this constitutional tension is resolved.

Dr Ajay Kummar Pandey is an advocate practicing before the Supreme Court of India.