Don't kill the RTI
Unjustified
judicial intervention could compromise the good the right to information is
doing
Perhaps the biggest
contribution of our Parliament towards promoting greater accountability in
independent India is the enactment of the Right to Information (RTI) Act, 2005.
If, as they say, information is power, then the RTI Act has been a veritable
'Brahmastra' in the hands of the Indian public. It has been extremely
successful in empowering people with information held by public authorities.
The Indian RTI
experiment has proved that right to information is a powerful tool that serves
to bridge the democratic deficit created by increasing inequality and
differences in access to opportunities. Countless Indians are now able to check
the status of their ration cards, below poverty line (BPL) cards, passports,
application for public schemes etc. The RTI has made the state machinery more
accessible and easier to manage, especially for the poor and vulnerable sections
of society. An important reason why this has been so is because the Act has an
effective and reasonably efficient implementation machinery consisting of the
state and central chief information commissioners (CICs) who have the power to
give effect to the provisions of this Act.
This success story
of the RTI Act has, however, encountered a significant reversal in the recent
judgment of the Supreme Court in Namit Sharma's case. In this case, a public
interest litigation was filed challenging the constitutionality of Ss 12 and 15
of the RTI Act, 2005, dealing with appointment of the information
commissioners. In a single stroke, the court completely upset the established
RTI machinery with disastrous consequences for the public at large.
The court held that
the commission is a "judicial tribunal" having the "trappings of
a court". Given this, it reached some surprising conclusions. It held that
the information commissioners "shall henceforth work in benches of two
each...one of them being a 'judicial member', while the other being an 'expert
member'." The appointment authorities were directed to "prefer a
person who is or has been a judge of the high court" for appointment as
information commissioners. It was also held that the CICs "shall only be a
person who is or has been a chief justice of the high court or a judge of the
Supreme Court of India".
There are a number
of flaws in the reasoning. First, equating the information commissions with a
"judicial tribunal" is clearly erroneous. The only issue to be
decided before the commission is whether information, which is already
available with the autho-rities, should be disclosed or not. The commission
does not therefore dispense justice (like a court), it merely deals with
disclosure of information.
Second, the Act
already provides certain qualifications for appointments to the post of
information commissioners ("persons of eminence" and "knowledge
and experience" in particular fields). However, the court has completely
rewritten the provisions of the Act by insisting on qualifications that go
beyond what has been prescribed by the Act, and further, by specifically laying
down the requirement of two-person benches, having at least one judicial
member. This is a clear case of judicial overreach where the court has
virtually legislated provisions of law.
More importantly,
there are important practical concerns that flow from this judgment, and which
the court has unfortunately glossed over. A huge fallout by way of immediate
effect of this judgment would be the cessation of the acti-vities of all the
information commissions until members with judicial background are appointed.
The position of the current incumbents to the post of CICs becomes precarious
as they cannot continue to work as per the SC decision. It is completely
unclear whether they would resign or be removed — and if so, under what
provision?
Till the time the
judicial experts are appointed, the number of second appeals pending with the
information commission would rise by a huge number. The central information
commission now has 11 posts, none of which is held by a member with a judicial
background. Three posts are vacant. For the commission to work in benches of
two, it has to have at least 12 members. Of the 12, six have to be judicial
members, which means a minimum of two of the existing members have to be
replaced.
But there are two
problems here. All the members do not retire at the same time. Besides, it is
nearly impossible under the RTI Act to remove an incumbent commissioner. If the
ruling can come into effect only after the members retire, it is unclear what
will happen in the interim. Even when judicial members join, the bench of two
members in a team is likely to slow down the disposal rate because there will
only be half the outlets dealing with complaints, not to mention the increased
time taken when two members deliberate.
There is no doubt
that reforms are necessary in the process of appointments of information
commissioners to make it more transparent; at present, mostly bureaucrats are
appointed to these posts. The information commissions should not become a
retiree's club. But the result of the SC's judgment is far worse. Information
commissions are not manned by judges in any other country.
Namit Sharma is a
regressive decision that only hampers the working of the information
commissions by making it more legalistic and complex. It creates more problems
while solving none. A review of the decision is pending before the SC, and it
is hoped that the court takes into account these genuine concerns while
relooking at this issue.
- By Ajit Prakash Shah ( The
writer is former chief justice of the Delhi high court.)
Courtesy : The Times of
India, Oct 27, 2012
