-Economic and Political Weekly
A recent judgment of the Supreme Court reduces the number of benches which can hear appeals and complaints under the Right to Information Act. The prime minister too has expressed worry about the incidence of frivolous right-to-information applicants that takes up offi cial time, intrudes on privacy and may even discourage private entities from joining public private partnerships. Vigilant citizens must debate these events and see how they affect a powerful law that has given citizens the right to demand good governance.
Shailesh Gandhi (shaileshgan@gmail.com) is an RTI activist and former Central Information Commissioner.
India’s Right to Information (RTI) Act has been rated as the second best in the world by international agencies. However, the actual implementation of the law leaves a lot to be desired. RTI users across the country have been trying to ensure improvement in its functioning. Concerned citizens have adopted the Act as their own, and zealously warded off government’s attempts to weaken it with amendments so far. While institutions of the state are supposed to implement laws, in this case it is citizens who are enforcing the law. They badger public information officers (PIOs), the first appellate authorities and commissioners to ensure that the Act works properly. RTI exposures are responsible for unearthing many of the scams that have been making the headlines of late. However, two events in the recent past are very disturbing as far as the future of RTI is concerned.
Alarming Events
The first was the Supreme Court’s (SC) judgment in the Namit Sharma vs Union of India in wp (C) 210 of 2012 on 13 September. It says Information Commissions (ICs) will have to hear all appeals and complaints in two-member benches, one of whose members has to be a retired high court judge. The RTI Act provides for a maximum of 11 commissioners (and thus 11 benches). The SC’s judgment reduces these to a maximum of five benches. The other alarming event was the prime minister’s (PM) speech at the Central Information Commission’s annual convention on 12 October. The PM voiced his concerns regarding frivolous and vexatious RTI applications, citizens asking for information to highlight mistakes committed, voluminous information being sought which, in turn, means taking up a lot of official time and intruding on the privacy of individuals. Besides this, the PM also expressed worry at citizens seeking information about public private partnerships (PPP) that might discourage private enterprise.
These two events are separate but coming within a month of each other, they should serve as a warning for concerned citizens. I decided to look at four judgments of the SC in the last one year, which appear to reveal its mind on the RTI Act. I am listing the main points in the Supreme Court’s judgment in the Namit Sharma case that may have a very damaging impact on the implementation ofthe RTI:
(1) The judgment reduces the number of benches under which commissioners can hear cases to a maximum of five (11 earlier). There are serious practical problems in getting retired judges for this task, which the Court does not appear to have thought about.
(2) The reduced number means that it is unlikely they will clear over 3,000 cases per bench, i e, 15,000 cases per commission annually. The Central Commission, the Maharashtra Commission and the Uttar Pradesh Commission get over 20,000 cases each year and the number is only growing. The aam admi, in whose name we profess to act, will no longer use RTI, just as he/she has moved away from consumer forums and the judiciary. In that event, the potential of the RTI Act to change the face of Indian democracy will be lost. It will also result in the pressure on public servants to respond to RTI queries being reduced considerably.
(3) Internationally, over 90 countries have access laws now. Over 35 of them have ICs; not one of them requires having “judicial members” and most of them do not require multiple member benches.
(4) In India, and in many other parts of the world, most quasi-judicial bodies do not have “judicial members”. The Court has erred in declaring ICs as judicial tribunals since this is contrary to the provisions of the RTI Act.
(5) The Court has talked of legal interpretations and third party issues to order the requirement of retired judges. There appears to be greater concern about exemptions rather than on giving information. A study done by me and a team of legal interns of the Central Commission’s decisions between January and April 2012 shows that any kind of legal interpretation is involved only in about 15% of the cases. Is it necessary that two-member benches should be adjudicating all the matters?
(6) The judgment has made decisions that are really in the jurisdiction of Parliament and the executive. If the judiciary makes laws, the division of power envisaged in the Constitution becomes unbalanced, giving no opportunity to citizens to discuss and debate such matters. This is not in keeping with the Constitution’s provisions.
(7) The implications of following the Court’s directions would mean transforming the simple statute – which at present works in a reasonably effective manner – into a judicial tribunal, something that would only delay matters and encourage advocates. Presently, over 99% of citizens appear in the second appeal themselves. The impact of this judicial intervention would be that most citizens will be required to hire lawyers, putting severe hurdles in the way of the poor who approach the commissions.
The Chief Information Commissioner (CIC) of the Central Commission said at its annual convention on 12 October,
The approach of the Commissions in all these years has been to act like an umpire standing right on thefieldalong with the players and not sitting on a pedestal and pronounce oracles. Openness of approach, informality in style and simplicity of systems have characterised the functioning of the Commissions. No robes, no lawyers, no liveried attendants because what the citizens seek does not go with so much of serious formality. Excessive judicialisation of the Information Commissions will rob these institutions of their flexibility. The Society must decide if this is the right path.
Vigilance Is Essential
Citizens must discuss this judgment and request the SC to rescind it as it is likely to seriously impinge on their fundamental right they have given themselves through their representatives in Parliament. The RTI Act was working reasonably well and citizens had told Parliament and the government that they did not wish to see any amendments in the Act. This judgment upsets a regime that was delivering a fundamental right to citizens reasonably.
I admit that many of the present Information Commissioners may be found wanting. This in fact is the complaint against all commissioners who are appointed without a proper process and due to patronage. The solution lies in ensuring a transparent process to select them and holding them accountable.
There are three other judgments in the last one year that appear to narrow the scope of the RTI Act. In civil appeal 10787-10788 of 2011, the Court has used a literal interpretation of the Act instead of a purposive interpretation to declare that commissions cannot order information to be given when dealing with a complaint under Section 18. This judgment does not take into account the basic purpose of the law. This is in contrast to the Allahabad High Court judgment in AP 3262 (MB) of 2008 which said,
We are also of the view that the Commission while enquiring into the complaint under Section 18 can issue necessary directions for supply/disclosure of the information asked for, in case the Commission is satisfied that the information has been wrongly withheld or has not been completely given or incorrect information has been given.
Consequent to the SC’s order, the commissions are not able to order information to be provided in complaints, which is the main purpose of the law.
The Supreme Court in SLP 27734 of 2012 has held that information provided by and about public servants such as their assets, performance reports of their work, and details of gifts received by them are exempt under the RTI Act. This appears contrary to the Court’s orders given earlier. In appeal 6454 of 2011 it stated:
Some High Courts have held that section 8 of RTI Act is in the nature of an exception to section 3 which empowers the citizens with the right to information, which is a derivative from the freedom of speech; and that therefore section 8 should be construed strictly, literallyand narrowly. This may not be the correct approach.
Empowering Law
I believe that the approach of the high courts (HCs) was the right one, since it recognised the primacy of citizens’ right to know – a right consistently upheld by the Supreme Court since 1975. In appeal 6454 the judgment further states:
Indiscriminate & Impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency & accountability in the functioning of public authorities & eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The RTI Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration or to destroy the peace, harmony among its citizen. Nor it should be converted into a tool of oppression and intimidation of honest officials striving to do their duty.
Citizens would be surprised to know that the RTI law