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UpFront/Special | Oct 3, 2012 | 15977 views

A Recent Supreme Court Ruling Could Kill RTI

Why the recent Supreme Court ruling threatens to kill citizens Right to Information
A Recent Supreme Court Ruling Could Kill RTI
Image: Getty Images

T

he Supreme Court has placed the Central Information Commission (CIC), the apex body to deal with appeals regarding RTI, as well as the Information Commissions across the states in a fine pickle.

On September 13, a division bench of the Supreme Court, chaired by Justice AK Patnaik and Justice Swatanter Kumar, passed an order which would fundamentally change the constitution and working of Information Commissions. Apart from the operational problems, the suggested changes would require an amendment to the RTI Act by the government. As a result, none of the information commissioners know whether to discharge their duty and, if so, how. Moreover, many RTI activists are complaining about a blatant case of judicial over-reach.

“The SC can say something is wrong and needs to be changed but they can’t order the legislature to make a law according to their directions,” says Subhash Agarwal, a prominent RTI activist in New Delhi.

The Order
The SC has ordered that Information Commissions should henceforth hear appeals as two-member benches, replacing the existing norm of each member working separately. What further complicates the matter is the ruling that one member in each bench should necessarily be a ‘judicial’ member. By ‘judicial’, the SC implies someone who has practised law for 20 years or preferably a judge or a retired judge of the SC or a high court. Lastly, the Chief Information Commissioner at the Centre and the states should also be a judicial member.

The Disorder
The Central Information Commission has eight active members, including the chief, out of the total 11 vacancies. Not one among them is a judicial member. Nobody, including the commissioners, is clear how they should function, considering there are no judicial members to constitute even a single bench. Even when judicial members join, the bunching 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. “Effectively the disposal of pending cases will drop to about 50 percent of the current disposals,” says Shailesh Gandhi, a former Information Commissioner at the CIC. The probable rise in pendency to almost five years could sound the death knell for the Act, according to Gandhi.

Certain other elements in the order have confused observers. For instance, it is unlikely that a sitting judge will ever leave the Supreme Court to join the CIC. Yet ironically, a retired judge of the SC would also not be able to join since both the SC and CIC have the same retirement age of 65 years. It is not clear why the head of Information Commissions must necessarily be a judicial member. “If anything, he or she needs to have some administrative acumen over and above a regular member,” says Agarwal.

Still, not every thing is wrong with the SC order. One view is that the inclusion of judicial members is likely to bring some diversity in the appointees to these commissions, often described as a parking lot for bureaucrats. “While the decisions will be more robust, one is still afraid that the real loser might be the common man who may find it too daunting to represent himself in front of a judge and may incur additional costs in hiring lawyers,” says Anjali Bhardwaj, member of the National Campaign for People’s Right to Information.

This article appeared in the Forbes India magazine issue of 12 October, 2012
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Comments (11)
Sanjay Patil Sep 16, 2013
judicial member is a must in every commission because bureaucrats dont have judicial nature they are used to take decisions which suite there mentality they dont work or think for the society taking decision in the interest of people and nation needs mentally prepared persons
An article on CAGS in The Hindu has revealed their state of mind and working capacity for the nation and people we cannot expect any thing from these persons who only live to eat and not eat to live
Ram Nagina Singh Jul 11, 2013
The apex court has passed the order in the right way. one amendment should also be done , so unnecessary RTI is not filed as the most of the departments are engaged to reply the same. The mos. Of politicians are using as tools for votebanks. The RTI should be filed for public welfare.
Thagnass May 21, 2013
This is the Best.. Subhash lacks total knowledge.. Our sad thing is that CITIZENS never ask their right.. it is only the road side vagabonds that take the RTI in their hand in the name of citizens
Govindaraj.s Feb 8, 2013
The consumer forums are set up at district level, state level and national level. If the same set up is brought to deal with RTI Act cases and appeals, and appointing the retired judges to hear RTI Act cases, the enactment would serve its purpose.
Govindaraj.s Feb 8, 2013
The information commission may be reconstituted just like a consumer forum which is having its presiding officer a retired judge. Then only the implementation of RTI Act would be effective.
Dinesh Sharma Dec 21, 2012
Why SC is making weak RTI act of 2005 as people of India is suffering badly thier daily routine life.
Haridas Mandal Dec 3, 2012
I am now suspicious . Forbes India, which list Billionnaires and Crore paties interested in RTI Act to survive? Some thing very very fishy!! I think Desi/ Videshi and well off NRI are sponsoring this activity against the judiciary. Ex - Bureaucrats will be the real beneficiaries if SC judges balked down. Let it be referred to 11 members judicial bench with statuesquo maintained with a specific time limit.
Avnish Oct 18, 2012
RTI act 2005 has been killed by the decision of Supreme court of Indian in the recent judgement. Details of investigation report, censure report etc are considered to be personal information as per the decision of supreme court decision.Then how could the transparency and accountability be ensured in cases related to the corrupt officials.Subsequently RTI act will certainly fail to check the corruption
Dr. P.k. Aditya Oct 4, 2012
Perusal of the order shows that it is based upon the RTI Act; except that the sections which provide qualifications and experience lack necessary grit. Bureaucrats book their seats much before superannuation, and being protagonists of Official Secrets Act, anti-transparency, just put on the cloak of RTI. Can a quasi-judicial tribunal function without any judicial inkling, is the question. The Commissions have power to get public authorities do as the Act demands, if it by itself lacks commitment. The Act demands so much information to be put on websites that public make minimum use of making applications. But websites, if there, are in a woeful state. Information is not cataloged and indexed, hence requests for inspection are turned down. Process of requested information to be completed in 30 days, is blocked when on 29th day the requester is informed that his question is not clear. Instead of imposing penalty if information is not supplied, the PIO is just let off. It is a thorough overhaul as the Apex Court has ordered which can put RTI on the rails. Thanks
Shailesh Gandhi Oct 3, 2012
Some key problems with the Supreme Court judgement in Namit Sharma vs. Union of India in WP no. (C ) 210 of 2012 : (Most of the issues are at point 8 of the directions)
1. The judgement orders that all Chief Information Commissioners must be retired Chief Justices of High Courts or Supreme Court. It also stipulates that the Information Commission must adjudicate in benches of two, with one being a former High Court judge. The retirement age of Commissioners is 65 and the retirement age of SC judges is also 65. Hence only retired High Court Chief Justices only can be Chief Information Commissioners. Where will the Nation find 28 retired Chief Justices to head all the State commissions? Thus there will no selection. All Chief Justices of High Courts will have one guaranteed job.
2. The judgement states it is applicable ‘henceforth’. This has resulted in 28.5% State Commissions,- including Maharashtra,- to suspend their operations. This could continue for another three to five months atleast. The adjudication on a matter concerning the fundamental right of Citizens has been suspended suddenly, -without any urgent reason,-and all these Commissions are on a holiday wasting the money of the poorest citizen who may be starving to death.
3. Whereas the RTI Act provided for eleven Commissioners who could hear cases in 11 benches, the judgement reduces these to a maximum of five benches, since there have to be two member in every bench. Retired High Court judges will be difficult to find and this may result in the Information Commissions going into a dormant state. Besides judges are likely to bring their habits with them resulting in adjournments and legal finesse which will become ideal for lawyers. This will take away the simple manner in which ordinary citizens are able to deal with the Commissions.
4. If the maximum number of benches per Commission is 5 it is unlikely that they will clear over 3000 cases per bench, ie. 15000 cases per Commission annually. The Central Commission, Maharashtra Commission and the UP Commission get much over 20000 cases each year and this is growing. A simple projection shows that in these and many other Commissions the pending cases will become over five years in the next five years. The ‘aam admi’ in whose name we profess to act will no longer use RTI, just as he has gone away from the Consumer forums, judiciary and many other forums. In that event the potential of RTI to change the face of Indian democracy will be lost. This will result in the pressure on public servants to respond to RTI queries being reduced considerably.
5. Internationally over 90 countries have access laws now. Over 35 of them have Information Commissions. None of them have a requirement of having ‘judicial members’. Most of them do not have a requirement of multiple member benches.
6. In India many quasi-judicial bodies are in existence without ‘judicial members’.
7. The Court has talked of legal interpretations and third party issues to order the requirement of retired judges. A study done by legal interns with me of the Central Commission’s decisions for the period January to April 2012 (attached) shows that any legal interpretation is involved only in about 15% of the cases. Is it right that two member benches should be adjudicating all the matters? Even in the High Court many matters are heard by single judges. Does it appear right that there should be two senior citizens adjudicating all RTI matters? There is a very strong possibility that RTI Commissions will become irrelevant for most citizens, and this will have a serious deleterious impact on the exercise of this fundamental right.
8. The judgement has made decisions which should really be in the jurisdiction of Parliament and the executive. If judiciary takes these decisions, the division of power envisaged in the Constitution is unbalanced and this gives no opportunity to Citizens to discuss and debate such matters.
9. Citizens must discuss this judgement and request the Supreme Court to apply its mind to this, since it is likely seriously impinge on the fundamental right of Citizens which Citizens have given to themselves thorough their representatives in Parliament.
Vijay Trimbak Gokhale Oct 3, 2012
There seems to be a lot of misinformation. Nobody is pointing out or perhaps cannot point out the faults on the philosophy and intent of the judgment. No body is providing the solution also. The fact remains that, in order that this act remains a potent and powerful tool to strengthen the democracy the spirit of the judgement cannot be disputed, it must be appreciated and implemented. The difficulties expressed are technical and administrative in nature. Let at least all the members be judicial members as described by the judgment. A way needs to be found out to iron out technical and administrative difficulties.

One has to read the judgment carefully to appreciate that it has scholarly justifications for everything that it has stated and concluded. Going by the plethora arbitrary, capricious decisions given by ICs a course correction was definitely required.

As per data provided by CIC itself, out of the 75284 appeals/complaints disposed of by it so far, in only 648 (1.72%) cases it has imposed penalties, in 134 (0.35%) cases it has sanctioned compensation to appeallants/complainants and in only 22 cases (0.05%) cases it has recommended disciplinary action against PIOs. This strengthens the belief that babus were shielding each other and PIos were emboldened to give arbitrary decision. It is now hoped that those days would be over. CIC does not have data on in how many cases penalty/compensation was actually paid and disciplinary action was actually taken.

RTI act is a law and CIC/SICs are quasi judicial bodies. SC judgment has dealt on this with great detail and scholarship and said that these are tribunals/quasi judicial bodies.

After all law is law and social work to fight for establishing and upholding the right is a different thing. Implementation of law must be kept in the hands of legal persons and not social workers. One can argue that this is also not foolproof arrangement but in a democracy this is the best possible arrangement. By the same token then Courts also should be manned by non legal persons.

By the same token activists fighting for health issues and dwelling for poor will say that they should appointed as medical professionals or builders. Activists play a very important role in a democracy. They should protest, give their views etc. but they cannot wear the clothing of a professional.

Have the activists forgotten arbitrary, capricious, patently illegal, arrogant decisions given by CIC/SIC. I have got a patently illegal decision given by former Hon.CIC Mr. A.N.Tiwari and current CIC. One can sit down and point out instances of illegalities, case by case. One such instance is remanding back of second appeal/complaint to AA because AA has not heard. It is patently illegal and that was an illegal way disposing of the case merely for increasing one's rate of disposal. Once the complaint/appeal is made to CIC/SIC it has to hear it and dispose it off. They do not have extra ordinary powers like courts and this so called innovation was started by activist IC.

Once IC has come to the conclusion that information has to be provided then the violation of law is established and the violation dates back to the day on which information was refused by CPIO. This is a settled position. In terms of act it is liable for penalty. But as per statistics provided by CIC, in only miniscule i.e. less than one per cent of cases penalty has been imposed so far.
Ascertainment of satisfaction of competent authority contemplated in Sec. 8(1)(d) and (e) is never made by CPIO/AA and no IC has ever dealt on it. This is patently illegal Competent authority is as defined in RTI act.
SC has laid down transparent process to be followed in appointment of other ICS.
The fear of dealy is unfounded. On the other hand the CPIOs and AA will hopefully stop giving arbitrary decisions because they now know that the days of bureaucrats sitting as IC and shielding them are over. There would be fair and proper hearings at CIC/SIC and not the police type interrogation as is being currently practiced. Today ICs behave as if they are demi gods and every appellant/complainant before them is illiterate, not knowledgeable man. In so far as delay is concerned this is a serious problem everywhere in the country and activists should fight for it. RTI act may provide for ""no adjournments" and the ""matter to be disposed of within two hearings at best and if required".
RTI act is for perpetuity to strengthen democracy and despite fears of delay it must be implemented judicially. SC decision is a shot in the arm of RTI movement. One should look at it's long term wide ranging effects.
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