The Supreme Court has concluded that the duties of the Information Commissioner is judiciary in nature and requires a qualified legal mind. It wants the government to amend the Act. The SC judgment may ring the death knell of the RTI Act, one of the rare laws that empowers an individual
The Right to Information (RTI) is derived from the fundamental rights conferred on an Indian citizen under Article 19(1)(a) of the Constitution of India which spells out the right to freedom of expression and speech including the principle of receiving and sharing of information. It is with these principles in mind, that the Government of India passed the Freedom of Information Act in 2002, which was later replaced by the Right to Information Act, 2005, in order to ensure greater and more effective access to information.
The Right to Information Act, 2005, was passed to secure access to citizens to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority. It sets out the obligation of a public authority to maintain all its records, to publish particulars of its organization, functions and duties and various other details and provide as much information as possible, widely and so as to be easily accessible to the public. The RTI Act also sets down the procedure for making a request by any person who desires to obtain any information under this Act as well as the procedure for disposal of such request by Public Information Officers (PIOs) appointed by the public authorities. Certain exemptions from disclosure of information are provided in Section 8 and 9 of the RTI Act. In order to ensure that the procedure for disposal of a request for information is complied with by the information officers appointed by all public authorities, a procedure for appeal is provided in the RTI Act from the decision of the PIO, first to the officer who is senior in the rank to the PIO and thereafter a second appeal to the Central Information Commissions (CICs) or the State Information Commissions (SIC), as the case may be.
The RTI Act also provides for constitution of the CICs as well as the State Information Commissions under Section 12 and 15 respectively. Section 12(5) sets down the qualifications of Central Information Commissioners viz. that they shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. Similarly, Section 15(5) sets down the qualifications of a State Information Commissioner which are identical to the qualifications of the Central Information Commissioners. Section 12(3) states that Central Information Commissioners shall be appointed by the president on the recommendation of a Committee constituted by the prime minister, who shall be the chairperson of the committee, leader of the opposition in the Lok Sabha and a Union cabinet minister to be nominated by the prime minister. Section 15(3) in the same fashion sets down that State Information Commissioners shall be appointed by the governor on the recommendation of a committee consisting of the chief minister who shall be the chairperson of the committee, Leader of the opposition in the Legislative Assembly and a Cabinet minister to be nominated by the chief minister. Section 13 (1) and (2) and Section 16 (1) and (2) of the RTI Act sets out the term of office, which is five years from the date on which the Central Information Commissioner/State Information Commissioner enters upon his office, provided that said Information Commissioner has not attained the age of 65 years.
Thus the qualifications of the Information Commissioners, the mode of appointment and the term of office have been clearly spelt out in the RTI Act.
Despite the provisions on eligibility and method of appointment as presently existing under the RTI Act being very clear and unambiguous, a writ petition was filed in the Supreme Court claiming that the criteria for appointment of persons who are to adjudicate the disputes under the Act are too vague, general, ultra virus the Constitution and contrary to the established principles of law laid down under several judgments of the Supreme Court. The petitioner Namit Sharma further claimed that the persons who are appointed to discharge judicial or quasi-judicial functions or powers under the RTI Act ought to have a judicial approach, experience, knowledge and expertise.
The Supreme Court in its judgement dated 13th September, 2012 passed in the said writ petition has been pleased to interpret the various provisions of the RTI Act and to “read into” these provisions some of the aspects which according to the Supreme Court were necessary as without these aspects the relevant provisions were bound to affect the doctrine of equality. The judges have felt that the expression knowledge and experience in Section 12(5) and 15(5) of the RTI Act would mean and include a basic degree in the respective fields and experience gained thereafter. They have also chosen to read into the provisions of Section 12(6) and 15(6) that the said provisions would have effect post-appointment. They have further held that the appointment of legally qualified, judicially trained and experienced persons as Information Commissioners would certainly manifest in more effective serving of the ends of justice as well as ensure better administration of justice by the Commissioners. The Supreme Court has then gone on to hold that the duties of the Information Commissioners involve adjudicatory procedure which involve critical legal questions and nuances of law and that appointment of a judicial person to the post of an Information Commissioner would enhance the public confidence in the work of the office of the Commissioner.
The Supreme Court has therefore come to the conclusion that there is a absolute necessity for the legislature to reword or amend the provisions of Section 12(5), 12(6), 15(5) and 15(6) of the RTI Act and have observed and hoped that these provisions would be amended at the earliest by the legislature to avoid any ambiguity or impracticability and to make it in consonance with the Constitutional mandates. The Supreme Court thereafter proceeded to set down that the Information Commission should be a “judicial tribunal” performing functions of ‘judicial’ as well as ‘quasi-judicial’ nature and having the trappings of a court. The Supreme Court has gone on to direct that Information Commissions hence from should work in benches of two members each, one being a “judicial member” while the other is an “expert member”. The court has also laid down the qualifications of the judicial member and as to who is entitled to appoint such judicial members and expert members.
The Supreme Court has held that it is preferable if the judicial member should be a serving or retired judge of a high court in case of Information Commissioners and a person who is or has been chief justice of the high court or judge of the Supreme Court of India in the case of Chief Information Commissioners. Section 13(1)) of the RTI Act provides that the Chief Central Information Commissioner shall hold office till he attains the age of 65 years. Section 16(1) stipulates a similar period for Chief State Information Commissioners. Since the retirement age of a chief justice of the high court or a judge of the Supreme Court is 65, it would not be possible for any retired judge of the Supreme Court or chief justice of the high court to be appointed to the post of a Chief Information Commissioner. Therefore, this recommendation of the Supreme Court is contrary to the provisions of the RTI Act.
The Supreme Court, in the same fashion, has given a go-by to the provisions of Sections 13(3) and 15(3) which set out the procedure for appointment of Information Commissioners, by stipulating that the judicial members on the panel of Information Commissioners shall be appointed in consultation with the Chief Justice of India and Chief Justice of the Supreme Court as the case may be. So also the appointment of the expert members of Information Commissioner have also been interfered with by the Supreme Court by insisting that they should be chosen from a panel prepared by Department of Personnel and Trading (DoPT) in the Centre and the concerned ministry in the State as also setting down how the members of the panel should be chosen.
The Supreme Court, by insisting that the Information Commissioner’s office should comprise of two-member tribunals of which one would be a judicial member, have in fact complicated the procedure to be followed for the appeals filed to the Information Commissioners. It is a well known fact that if commissions or tribunals contain judicial members it results in delay at various levels, as unnecessary steps such as engaging of advocates and other legal formalities associated with Court procedure would be included, thus complicating the simple process now set out in the RTI Act under which Appeals are disposed of expeditiously. The time for disposal of appeals would thus increase considerably leading to a large backlog of pending appeals. This in turn would adversely affect the right of a common man to obtain information, and thus frustrate the main objective of the Act.
The Supreme Court has come to the conclusion that the duties of the Information Commissioner is judiciary in nature and requires qualification of a legal mind. A plain reading of the RTI Act would make it clear that all that is necessary for the Information Commissioner to consider while disposing off appeals is whether the information sought falls within any of the exceptions provided in Section 8 of the RTI Act and whether it is required to be rejected as provided in Section 9 of the RTI Act and whether the information has been provided on time, none of which requires the possession of a judicial mind. It is also pertinent to note that several commissions and bodies set up by the Government do not contain judicial members and there are various examples where appeals have been decided by an officer of Central Government and not by a judicial person. Also legal expertise is necessary only where it is proposed that a tribunal is substituted in the place of a high court, which is not the case here. What is, therefore, necessary is for the Information Commissioners to act judiciously and not that they should have judicial knowledge. The mere fact that the RTI Act states that the Information Commissioners are vested, with limited powers of a civil court, would not mean that the Information Commissioners are acting like a Court. The said limited powers have been granted to the Information Commissioners only to assist the Information Commissioners to perform their duties as laid down in the RTI Act, which in fact are more administrative in nature than judicial though the Supreme Court has held otherwise. Further the penalties as provided under the RTI Act which Commissioners are entitled to enforce are only of a pecuniary nature and they can at best recommend disciplinary action against the Information Officers.
From the reading of the judgment of the Supreme Court, it would appear that the judges have exceeded their powers and duties as conferred on them under the Constitution as well as the powers laid down by the Supreme Court in various cases decided by the court viz. that courts cannot issue directions to the legislature to amend an Act or Rules and it is the right of the Parliament/Legislature alone to do so. The judgment itself quotes from various other decisions of the Supreme Court which lays down that a matter which is within the Legislative competence of the legislature has to be left to the discretion and wisdom of the framers, so long as it does not infringe any constitutional provision or violate any fundamental right. Sections 12(5) and 15(5) of the RTI Act have clearly laid down the qualification of Central Information Commissioners and State Information Commissioners and Sections 12(3) and 15(3) have laid down the procedure for appointment of such Information Commissioners. It is for the legislature to decide what should be the qualifications of such Information Commissioners or the mode of appointment. The Supreme Court while stating that it is “reading into” the provisions already contained in the Act, have actually advised that these provisions should be amended or altered and held that amendment of these provisions by the Legislature is an absolute necessity.
It is thus evident that the Supreme Court of India in its said Judgment has by issuing directions to the Legislature to amend the RTI Act and Rules, exceeded its powers and has stepped into the domain of the legislature. The court can issue orders and directions only if an Act is silent on a particular issue, which is not the case in the RTI Act.
The RTI Act as it exists, is a short and simple Act comprising of 31 Sections. However, it is extremely powerful and is well implemented and well used. The Act also provides for a time bound and defined process for citizens to access information and the remedies available to them if information is withheld. The Supreme Court has in fact passed directions which are contrary to the provisions of the Act in many instances and has attempted to replace the provisions as presently exist by provisions which the court believes ought to have formed part of the Act. By imposing its opinion on what the Act ought to contain and passing directions accordingly, the Supreme Court has rendered certain aspects of the Act unworkable and/or created hurdles in the smooth functioning of the provisions of the Act.
The passing of the Supreme Court judgment has, therefore, created a fear in the minds of the common man and RTI activists that the efficacious and speedy remedy available under the Act would be lost, if the legislature would decide to amend the Act as advised by the Supreme Court. This fear was aggravated by the fact that the government had already indicated its intention of amending the Act in relation to other aspects like exempting certain file notes from the purview of the ACT or reducing the areas on which information could be provided.
Fortunately, the Union of India has chosen to file a review of the judgment of the Supreme Court and has clearly set out various grounds on which review is sought, as according to the government, the Supreme Court judgment is illegal and unjustified. It has also been urged in the review that the Supreme Court will realize its error and will review and set aside its earlier judgment; since the judgment in its present form would ring the death knell on the RTI Act, one of the most progressive and beneficial pieces of legislation framed by the Parliament. The Central Government has also now under pressure from RTI activists and others decided not to move for amendment to the Act which it had proposed which would have curtailed transparency and accountability which the Act is meant to provide.
Read other RTI related articles, here.
(Mohana Nair is an Advocate practicing in the Bombay High Court. She is a Partner at JMB Partners, Advocates & Notaries and is known for her willingness to take up socially relevant issues and causes on behalf of NGOs on a pro bono basis)