It was a bolt from the blue. When Namit Sharma approached the Supreme Court earlier this year with a public interest litigation (PIL) on the appointment of information commissioners under the Right to Information Act (RTI), 2005, no one expected a judgment that would put the very effectiveness of the act under a cloud.
The concerns have been set off by four orders in the apex court verdict, delivered on September 14:
lInformation commissions will have to work only in benches of two members, and one of them must be a judicial member.
lThe government should appoint serving or retired high court judges as judicial members. It can also appoint a law officer or a lawyer who has practised for 20 years and has experience in social work.
lChief information commissioners at the Centre and the states should only be serving or retired chief justices of high courts or judges of the Supreme Court.
lThe first appellate authority (official within a public agency to whom an RTI applicant can appeal if his request is not heeded) must also be someone with a law degree or adequate knowledge and experience of law.
Experts feel that these orders will dilute the RTI Act considerably. “What no government has been able to do in terms of diluting the act, this judgment has the ability to do,” says Shailesh Gandhi, former information commissioner at the Central Information Commission (CIC).
Before the Supreme Court orders, many commissions had been hearing cases in single-member benches and did not have judicial members. So the immediate fallout was that the CIC and some state commissions suspended hearings. They interpreted the court’s orders that only two-member benches must hear cases “henceforth” to mean “with immediate effect”.
Single-member benches had been constituted to speed up proceedings to cope with the flood of RTI-related complaints. When the CIC started work, recalls former chief information commissioner Wajahat Habibullah, all members would together hear all cases, since there were not more than 80 cases a month. As the number increased to a few hundred a month, three-member benches began hearing cases. But when the CIC began to get close to 2,000 cases a month, the practice of single-member benches started. In spite of that, he points out, thousands of cases are pending.
This problem, Gandhi says, will worsen if all cases have to be heard by two members. “Productivity will come down by half,” he says. What’s more, each case will take longer to be resolved since the two commissioners will have to consult each other. Even in the present situation, he points out, the pendency of cases is likely to be between three and five years. “The situation will get worse with this two-member bench stipulation. This does not advance the citizen’s right to justice,” Gandhi declares.
RTI practitioners are also worried about the order’s stipulation on the appointment of judges to certain positions. Sharma’s PIL had pointed out that the criteria for the appointment of information commissioners under the RTI Act were too vague and the commissioners should have “judicial approach, experience, knowledge and expertise” since they had to adjudicate on disputes. The Supreme Court has gone along with this view.
Some activists feel this has the potential to improve the quality of orders by information commissions. “Having members with judicial acumen and experience can help improve the satisfaction levels of appellants and complainants,” acknowledges Venkatesh Nayak, programme co-ordinator of the access to information programme of civil society organisation Commonwealth Human Rights Initiative. Habibullah and Gandhi concede that the quality of orders in cases where a legal point was involved has been patchy. “There are cases where commissioners have zero understanding of the law and reasoned judgments are not given. But the solution lies in a more transparent process of selection, rather than in stipulating that only judges can give reasoned orders. Are all court judgments reasoned,” Gandhi argues.
“The requirement of judicial acumen for matters relating to adjudication is desirable, but this acumen doesn’t reside only with the judiciary,” notes former Chief
Justice of India J.S. Verma, pointing out that activists who were responsible for getting the RTI Act enacted were equally knowledgeable about the legal issues revolving around the right. “RTI is not such an intricate law as to merit this kind of order,” says Verma.
Indeed, a study commissioned by Gandhi when he was in the CIC showed that there was no legal interpretation involved in close to 90 per cent of the cases heard by the six central information commissioners between January and April this year.
The Supreme Court orders also throw up a host of issues related to practicality. Particularly worrying is the insistence that persons in the position of first appellate authority should be legally qualified. Such persons are usually Class I or II government officers, a majority of whom do not have legal qualifications and will therefore become ineligible. So the government will have to appoint legally qualified people in this class of officers afresh. “How will the government find people with legal training to fill these posts,” asks Nayak. The problem will be exacerbated in the case of the panchayats, where getting legally qualified people will be close to impossible, notes Habibullah. The only way out, then, would be to get judges in lower courts to act as first appellate authorities. “As it is, the judge-population ratio in India is among the poorest in the world. This is going to add to the burden of these judges,” notes Nayak.
The appointment of judges and lawyers will only lead to more adjournments, activists fear. Gandhi points out that when one state information commission was headed by a retired judge, only 15 out of 50-odd cases being heard in a day were settled; most of the cases were adjourned. Justice Verma dismisses these apprehensions, pointing out that not all judges encourage adjournments.
Yet Habibullah fears that the upshot of the decision will be information commissions functioning more like courts, with lawyers indulging in hairsplitting and making the application of the law complicated. “The beauty of the RTI law is its utter simplicity. Are we going to lose out on that,” he asks.
Sure, the judgment has its positive aspects. Another order was that the government should, within six months, frame rules to make the information commissions more effective, something it has not been doing. “Now the government will be forced to act,” says Nayak.
But both he and Gandhi feel the negatives far outweigh the positives of the judgment. Habibullah, however, strikes a more conciliatory note. “The positives are evident; the negatives are yet to be seen.”
Individuals who felt empowered by RTI will be waiting and watching.