It is indeed an irony that a judgement of the highest court of the land and the appointed custodian of all fundamental rights, has become a causal factor in the halting of dispute mechanism of an important fundamental right
International Right to Know Day (RKD) is celebrated on 28 September. The commemoration began on this day in 2002 when freedom of information organizations from around the world came together in Sofia, Bulgaria and created the FOI Advocates Network, a global coalition working together to promote the right of access to information for all people and the benefits of open, transparent, and accountable governments.
Although the anniversary of the RTI (Right to Information) Act in India is two weeks away, Commonwealth Human Rights Initiative (CHRI), decided to do a rapid survey of the status of work in all Information Commissions on the eve of RTK Day.
The organisation called up every one of the 28 Information Commissions affected by the Namit Sharma judgement of the Supreme Court of India. Readers will recollect that in this case of Namit Sharma versus Union of India [Writ Petition (Civil) No. 201 of 2010] the Supreme Court had directed that all second appeals and complaints under the Right to Information Act, 2005 (RTI Act) will be heard by a bench consisting of no fewer than two members and this bench will be presided over by an Information Commissioner who has a law background and judicial training (a serving or retired judge of the Supreme Court or a serving or retired chief justice of the high courts).
A leading national daily had reported soon after this judgement was pronounced as to which Commissions had stopped functioning. Hearings on appeals were suspended in Maharashtra, Kerala, Assam and Rajasthan as the SIC sought clarifications, while proceedings were going on uninterrupted at the Commissions in Karnataka, Andhra Pradesh, Tamil Nadu and Uttar Pradesh.
CHRI’s findings about the status of work in Information Commissions around the country
More than a quarter (28.5%) of the 28 Information Commissions has halted work in the aftermath of the apex court’s judgement. The Central Information Commission continues to hear cases as before. The state Information Commissions of Assam, Arunachal Pradesh, Haryana, Jharkhand, Madhya Pradesh, Maharashtra, Punjab and Rajasthan have halted work either on their own or upon the advice of the advocate general of the state or upon the advice of the state’s law department. However, in Kerala the advocate general has advised the state Information Commission to continue working. The state Information Commission in Jammu and Kashmir is not affected by this ruling as it is constituted under a separate RTI law enacted by the J&K Legislature. The apex court’s judgement is only restricted to the implementation of the RTI Act passed by Parliament.
Two of the seven state Information Commissions in north-eastern India (Assam and Arunachal Pradesh) have halted work. Work in all state Information Commissions in southern India continues as before. The Information Commissions of Madhya Pradesh and Maharashtra in central India have halted work while the Commission in Chhattisgarh continues to work while awaiting clarifications from the State Government about their future course of action.
The state Information Commission in Jharkhand has also halted work. It is headed by justice (retd) DK Sinha. Six vacancies in the Information Commission remain to be filled up. Despite the availability of a member with judicial training who also meets the direction of the apex court that all Information Commissions must be headed by serving or retired judges, work has been halted in Jharkhand. While the concern in many other state Information Commissions seems to be about the non-availability of a member with judicial training, in Jharkhand the concern seems to be about non-availability of non-judicial experts.
Other interesting findings
Goa is in the unique position of not having to make a decision about continuing or stopping work as there is no serving member on the Information Commission.
In at least two state Information Commissions the CHRI team (Ms Nandita Sinha and Amikar Parwar) met with resistance from the staff when requested to disclose their designation. Despite working in Information Commissions the mindset of secrecy has not changed much amongst bureaucrats. They do not seem to know that this information is required to be disclosed proactively.
Even more surprising is that most of the state Information Commissions that have halted work have publicly announced so on their websites. It appears that courtesy towards the appellants and complainants is not an important concern. Only Haryana State Information Commission has prominently posted an announcement on its website about the stopping of hearings.
India’s reputation as a model for people’s RTI is at stake
The Supreme Court’s judgement also said directed that persons with law background and judicial training must be preferred for appointment as first appellate authorities to dispose of first appeals. Given the hundreds of thousands of appellate authorities across the country it is not possible to cross check how many have actually stopped work. Perhaps a large majority of them many not even be aware of the Namit Sharma judgement.
There are some media reports about the government of India planning to approach the Supreme Court about difficulties with implementing the directions of the apex court. This is indeed a welcome move.
It is indeed an irony that a judgement of the highest court of the land and the appointed custodian of all fundamental rights, has become a causal factor in the halting of dispute mechanism of an important fundamental right. This anomalous situation needs to be corrected at the earliest as many eyes at the international level are trained on these developments. The Indian success story about RTI cannot be allowed to sour.