Editorial of Times Of India October 27
Unjustified judicial intervention could compromise the good the right to information is doing
Perhaps the biggest contribution of our Parliament towards promoting greater accountability in independent India is the enactment of the Right to Information (RTI) Act, 2005. If, as they say, information is power, then the RTI Act has been a veritable 'Brahmastra' in the hands of the Indian public. It has been extremely successful in empowering people with information held by public authorities.
The Indian RTI experiment has proved that right to information is a powerful tool that serves to bridge the democratic deficit created by increasing inequality and differences in access to opportunities. Countless Indians are now able to check the status of their ration cards, below poverty line (BPL) cards, passports, application for public schemes etc. The RTI has made the state machinery more accessible and easier to manage, especially for the poor and vulnerable sections of society. An important reason why this has been so is because the Act has an effective and reasonably efficient implementation machinery consisting of the state and central chief information commissioners (CICs) who have the power to give effect to the provisions of this Act.
This success story of the RTI Act has, however, encountered a significant reversal in the recent judgment of the Supreme Court in Namit Sharma's case. In this case, a public interest litigation was filed challenging the constitutionality of Ss 12 and 15 of the RTI Act, 2005, dealing with appointment of the information commissioners. In a single stroke, the court completely upset the established RTI machinery with disastrous consequences for the public at large.
The court held that the commission is a "judicial tribunal" having the "trappings of a court". Given this, it reached some surprising conclusions. It held that the information commissioners "shall henceforth work in benches of two each...one of them being a 'judicial member', while the other being an 'expert member'." The appointment authorities were directed to "prefer a person who is or has been a judge of the high court" for appointment as information commissioners. It was also held that the CICs "shall only be a person who is or has been a chief justice of the high court or a judge of the Supreme Court of India".
There are a number of flaws in the reasoning. First, equating the information commissions with a "judicial tribunal" is clearly erroneous. The only issue to be decided before the commission is whether information, which is already available with the autho-rities, should be disclosed or not. The commission does not therefore dispense justice (like a court), it merely deals with disclosure of information.
Second, the Act already provides certain qualifications for appointments to the post of information commissioners ("persons of eminence" and "knowledge and experience" in particular fields). However, the court has completely rewritten the provisions of the Act by insisting on qualifications that go beyond what has been prescribed by the Act, and further, by specifically laying down the requirement of two-person benches, having at least one judicial member. This is a clear case of judicial overreach where the court has virtually legislated provisions of law.
More importantly, there are important practical concerns that flow from this judgment, and which the court has unfortunately glossed over. A huge fallout by way of immediate effect of this judgment would be the cessation of the acti-vities of all the information commissions until members with judicial background are appointed. The position of the current incumbents to the post of CICs becomes precarious as they cannot continue to work as per the SC decision. It is completely unclear whether they would resign or be removed — and if so, under what provision?