Bombay High Court: In a petition challenging order passed by Goa State Information Commissioner on 16-12-2014 wherein, it was held that the petitioner in his capacity as Patriarchal Tribunal of the Archdiocese of Goa and Daman was a ‘public authority’ within the meaning of Section 2(h) of Right to Information Act, 2005 (‘RTI Act’), M. S. Sonak, J. held that the Archbishop Patriarch of Goa was not a public authority under RTI Act.
Factual Background
One of the respondents sought information regarding letter of appointment to the post of Archbishop-Patriarch of the East Indies, leave to inspect the register of cases of annulment of marriages sent by the Archbishop-Patriarch, etc. from the Public Information Officer (‘PIO’) of the Court through application dated 19-04-2011. It was further stated in the said application that the respondent had made an application under Section 6 of RTI Act to the PIO of Patriarchal Tribunal of Archdiocese of Goa and Daman on 21-02-2011, which was refused, and endorsement of refusal were annexed to the application dated 19-04-2011. The Court noted that the application was forwarded by the Court’s PIO to the petitioner most of the information sought was unavailable to the Court or did not pertain to its functions.
Following the same, the said respondent complained before the Goa State Information Commission (GSIC) under Section 18 r/w Section 20 of the RTI Act impleading the petitioner and sought certain reliefs including initiation of inquiry and penal action against the petitioner. The petitioner objected the same stating that he was not a public authority as per Section 2(h) of RTI Act. However, the said objection was dismissed by GSIC who held the petitioner to be a public authority under Section 2(h) of RTI Act.
Court’s Analysis of Public Authority under RTI Act Section 2(h)
The Court perused Section 2(h) of RTI Act and acknowledged that the Patriarchal Tribunal was not established or constituted under the Constitution or by notification issued or order made by the appropriate Government. The Court further highlighted that no contention was advanced about the Patriarchal Tribunal being covered by the inclusive portion of the definition in Section 2(h) of the RTI Act, and the argument/debate was restricted to the Patriarchal Tribunal being an authority or body established or considered by any law made by the Parliament or the State Legislature.
Pointing out the contention that the instant Tribunal was constituted under the Canonical Law, the Court cited Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, 1995 Supp (4) SCC 286 wherein, the Court dealt with the meaning of ‘Canon’ in detail and observed that no statutory law was framed in respect of Christian Churches, and that any dispute related to religious office in respect of Christians was cognizable by the Civil Courts, given the wide and expansive provision of Section 9 of the Civil Procedure Code.
The Court explained that the position related to Canonical Laws in Goa may not be the same as Ecclesiastical Laws of England applicable to its colonies. The Court further highlighted the history of the Portuguese Civil Code and introduction of law for divorce. It further discussed the Code of Civil Registration enacted on 4-11-1912, Article 19 of Decree No. 35461 dated 4-09-1946 recognizing the orders made by Ecclesiastical Courts or Tribunals annulling religious marriages solemnized under Canon Law, decisions of Ecclesiastical Courts and Tribunals to be transmitted to the competent High Court, etc.
The Court relied on Elmas Fernandes v. State of Goa, 2019 SCC OnLine Bom 2902 wherein, the Court considered the High Court’s role, whether it was purely administrative for enforcing the decisions and judgments of the Ecclesiastical Courts and Tribunals without revision or confirmation, or it was competent to judicially review the same under the extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. The Division Bench in Elmas Fernandes (supra) declared the Article 19 of Decree No. 35461 as unconstitutional, striking down the expression ‘without revision and confirmation’ as ultra vires, and held that the High Court’s role was not administrative but had the powers of judicial review. The Court through the said case noted that “the status of the High Court would not be reduced to that of a postman merely transmitting the decisions and judgments of the Ecclesiastical Courts to the Civil Registrar for endorsement or to make an endorsement in the margin of the marriage certificate.”
The Court supported its reliance in the aforementioned case through explanation of ratio decidendi in Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697. It further referred to Motor General Traders v. State of A.P., (1984) 1 SCC 222; Cooley’s Constitutional Limitations (8th Edn.), Vol. 1, at pp. 360-362 and R.M.D. Chamarbaugwalla v. Union of India, 1957 SCC OnLine SC 11 to explain Doctrine of Severability in the context of judicial review of legislation. The Court expressed that “The power to strike down offending law is a scalpel, not a machete.”
The Court summarized that the decisions and judgments of the Ecclesiastical Courts under the Canon Law were granted statutory recognition under Decree No.35461, which was a law made by the Portugal Parliament for its colonies, including Goa, Daman and Diu, and the same had continued to be the ‘law in force’ while not being repealed or amended by the legislature. The Court noted that the Patriarchal Tribunal was neither established nor constituted under Decree No. 35461 or the Goa, Daman and Diu (Administration) Act, 1962, and refused to conclude the same as per Article 19.
The Court explained that “The act of giving recognition to the decisions and judgments of the Ecclesiastical Courts and Tribunals like the Patriarchal Tribunal is not the same thing as establishing or constituting the Ecclesiastical Courts or Tribunals like the Patriarchal Tribunal. Similarly, the Canon Law or the Canonical Law cannot be regarded as the law made by the Parliament of India or the law made by the State Legislature. Merely because some of the decisions and judgments of the Ecclesiastical Courts and Tribunals constituted under the Canon Law may have acquired limited recognition under the State Law or the Parliamentary Law, that by itself would not be sufficient to hold that such Ecclesiastical Courts or Tribunals like the Patriarchal Tribunal are authorities or bodies established or constituted by a law made by the Parliament or the State Legislature.”
The Court refused to accept the reasoning purported by GSIC that the Patriarchal Tribunal was public authority as per Section 2(h) of RTI Act. Therefore, the Court set aside the impugned order passed by GSIC on 16-12-2014 and held that the petitioner was not a public authority under RTI Act.
[Archbishop Patriarch of Goa v. State Information Commission, Goa, 2023 SCC OnLine Bom 1694, decided on 17-08-2023]
Advocates who appeared in this case:
For Petitioner: Senior Advocate J. E. Coelho Pereira, Advocate B. Fernandes, Advocate Sagar Rivankar;
For Respondent: Senior Advocate J. P. Mulgaonkar, Advocate Deeksha Sharma.
