There are several institutions or officials, including the Election Commission and District Collectors who perform quasi-judicial functions. But it was never felt that they cannot function without someone with a judicial background. Why then it is being made mandatory for the Information Commission under the RTI? Hope the Supreme Court finds a way which does not result in the kiss of death for this cherished right, says Shailesh Gandhi, former CIC

I remember a story I had heard as a child. A very beautiful princess had a curse upon her. If she kissed anybody, the person would die in a few years. She was virtuous and good, but whenever she fell in love with a handsome prince and kissed him, the prince would wither away and die. The Supreme Court has pronounced a verdict on 13th September about the Constitution and selection of Information Commissioners which could have a similar effect on the Right to Information (RTI) Act. In the judgement in Namit Sharma Vs Union in WP(C) 210 of 2012 the Supreme Court has ruled that the RTI Act is not unconstitutional, but has then said that since the work of the Commission is quasi-judicial, at least 50% of all commissioners must be judges. All benches must be of two members, out of which one member should be a judicial member. It further directs that First Appellate Authorities should be legally equipped.
 

There are many quasi-judicial functions performed in our country. The Election Commission is certainly performing a quasi-judicial function. Yet, for years it was not felt that it could not function without retired judges, and has delivered its duty in a time-bound manner. Every collector performs quasi-judicial functions, but they need not be legally qualified. However, for understanding and implementing the Right to Information, people with judicial experience are required.
 

 One of the grounds for this direction by the apex court is Section 22 of the Act.  The section expressly provides that the provisions of the RTI Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than the RTI Act. In other words, where there is any inconsistency in a law as regards furnishing of information, such law shall be superseded by the RTI Act. Insertion of a non- obstante clause in Section 22 of the RTI Act was a conscious choice of the Parliament to safeguard the citizens’ fundamental right to information from convoluted interpretations of other laws adopted by public authorities to deny information. The presence of Section 22 of the RTI Act simplifies the process of implementing the right to information both for citizens as well the Public Information Officer (PIO); citizens may seek to enforce their fundamental right to information by simply invoking the provisions of the RTI Act.

Given the above, two scenarios may be envisaged:

1. An earlier law/rule whose provisions pertain to furnishing of information and is consistent with the RTI Act: Since there is no inconsistency between the law/rule and the provisions of the RTI Act, the citizen is at liberty to choose whether s/he will seek information in accordance with the said law/rule or under the RTI Act. If the PIO has received a request for information under the RTI Act, the information shall be provided to the citizen as per the provisions of the RTI Act and any denial of the same must be in accordance with Sections 8 and 9 of the RTI Act only; and

2. An earlier law/rule whose provisions pertain to furnishing of information but is inconsistent with the RTI Act: Where there is inconsistency between the law/rule and the RTI Act in terms of access to information, then Section 22 of the RTI Act shall override the said law/rule and the PIO would be required to furnish the information as per the RTI Act only.

Parliament had consciously inserted this clause to ensure that the RTI Act is simple to use and can be accessed by ordinary citizens, without the trappings of a legally perfect process, which does not deliver to the poorest citizen. The apex court has ruled that “The Information Commissions at the respective levels shall henceforth work in benches of two members each. One of them being a “judicial member”, while the other an “expert member”. Immediately, most Information Commissions will stop functioning since most of them do not have judicial members. Even when they do manage to get these, they will have to function as two-member benches, reducing their disposal to about 50% of the current disposal.  

In the Central Commission—at the present rate of disposal—it appeared that there would be over three year’s backlog in the next five years. With the disposal dropping to half, the backlog will be over five years in the same period. The same position will prevail in most of state commissions.

Have we forgotten Justice Mathew’s clarion call in State of Uttar Pradesh Vs Raj Narain (1975) 4 SCC 428—“In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. Their right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can at any rate have no repercussion on public security”.  
 

We might retain the process of following the Constitution and the legitimacy of various Institutions, but if we do not deliver to the citizens, we fail as a nation. In this case the fundamental right of citizens is at stake. Citizens have great respect and hope from the Right to Information Act. This is a request to the Supreme Court to find a way which does not result in the kiss of death for this cherished right.
 

(Shailesh Gandhi served as Central Information Commissioner under the RTI Act, 2005, during 18 September 2008 to 6 July 2012. He is a graduate in Civil Engineering from IIT-Bombay. Before becoming a full time RTI activist in 2003, he sold his packaging business, Clear Plastics. In 2008, he was conferred the Nani Palkhivala Memorial Award for civil liberties.)