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