Squeezing RTI out of shape

Posted on November 16, 2012. Filed under: Politics |

Squeezing RTI out of shape

Jagdeep S. Chhokar

Published in GovernanceNow, November 16-30, 2012, pp. 30-40.

RTI, one of the few weapons the common man has in his fight against the
high and mighty, is about to lose its edge

While folks working with the right to
information (RTI) were still reeling from
the supreme court judgment on the appointment
of information commissioners
in the Namit Sharma case, came the prime
minister’s speech on the seventh year
celebrations of the RTI Act on October 12,
again raising the sceptre of “frivolous and
vexatious” use of the law. The RTI Act now
seems to be suffering from what might
be called a double whammy, first the judiciary
and now the bureaucracy-politics
nexus!

Judicial Attack
When you file an RTI
query, you are seeking
information. Is
that similar to seeking
justice? You ask, for example, about
the amount spent on the rual job gaurantee
scheme in a district. That information
may lead to justice by fixing wrongs, if
any. But that comes later.
Our lawmakers drafted the RTI Act to
empower every citizen, and to that aim,
they kept the whole process as simple
as possible – unlike courts. Now the supreme
court has converted information
commissions into judicial tribunals.

The Namit Sharma petition seems to have
been specifically drafted to convert the
information commissions into any other,
regular judicial tribunal. The first three
“prayers” in the petition are given below.
The others were of an interim nature.

Prayers

It is therefore, most respectfully prayed
that this Hon’ble Court may graciously be
pleased to:-

a issue a writ in the nature of mandamus
or any other appropriate writ, order
or direction, declaring sub sections 5 &
6 of Section 12 & Sub Sections 5 & 6 of
Section 15 of the Right to Information
Act, 2005 as ultra vires the Constitution
of India being violative of Articles 14,16,
19(i)(g) & 50 of the Constitution of India;
and

b issue a writ in the nature of mandamus
or any other appropriate writ, order
or direction directing the Respondent
to amend the Right to Information Act,
2005 in consonance with the directions
of this Hon’ble Court and /or the
ratio laid down in Union of India Vs.
Madras Bar Association, (2010) 11 SCC
1; Pareena Swarup Vs. Union of India
(2008) 14 SCC 107; L. Chandra Kumar
Vs. Union of India, (1997) 3 SCC 261; R.K.
Jain Vs. Union of India (1993) 4 SCC 119;
S.P. Sampath Kumar Vs. Union of India,
(1987) 1 SCC 124; and

c issue a writ in the nature of mandamus
or any other appropriate writ, order
or direction directing respondent to
incorporate there should a provision for
appointment of retired Judges of High
Court or this Hon’ble Court as Chief
Information Commissioner, retired
District Judges as State Information
Commissioners and mixed appointment
of technical as well as Judges of the
Bench as Information Commissioners
respectively.”

The court appears to have been magnanimous
in not declaring any of the sections
or sub-section of the RTI Act as unconstitutional
but it has taken the extraordinary
step of changing the entire character and
thrust of the RTI Act by “reading into it”
meanings that the legislature never intended.
Let us take the two impugned sections
one at a time.
Almost half of the judgment (Para 54 to
Para 103) is devoted to the discussion under
the heading “Constitutional Validity of Section
12(5)”.

If it’s justice,
you need
judges on
board
The RTI Act says
information
commission will have people with
‘knowledge and experience’. What sort
of knowledge and experience? If an
information commission is delivering
justice, then of course it needs judges on
board, laymen won’t do.
The operative part of Para 103
reads:

“103. The above detailed analysis leads
to an ad libitum conclusion that under
the provisions and scheme of the Act of
2005, the persons eligible for appointment
should be of public eminence, with knowledge
and experience in the specified fields
and should preferably have a judicial
background. They should possess judicial
acumen and experience to fairly and effectively
deal with the intricate questions of
law that would come up for determination
before the Commission, in its day-to-day
working. The Commission satisfies abecedarians
of a judicial tribunal which has
the trappings of a court. It will serve the
ends of justice better, if the Information
Commission was manned by persons of
legal expertise and with adequate experience
in the field of adjudication. We may
further clarify that such judicial members
could work individually or in Benches of
two, one being a judicial member while
the other being a qualified person from the
specified fields to be called an expert member.
Thus, in order to satisfy the test of
constitutionality, we will have to read into
Section 12(5) of the Act that the expression
‘knowledge and experience’ includes
basic degree in that field and experience
gained thereafter and secondly that legally
qualified, trained and experienced persons
would better administer justice to the people,
particularly when they are expected to
undertake an adjudicatory process which
involves critical legal questions and niceties
of law. Such appreciation and application
of legal principles is a sine qua non to
the determinative functioning of the Commission
as it can tilt the balance of justice
either way” (underlining added).

The conclusion of the “detailed analysis”
contained in the paragraph above, is reflected
in the final “order and directions”
thus:

“106 (2). The provisions of Sections 12(5)
and 15(5) of the Act of 2005 are held to be
constitutionally valid, but with the rider
that, to give it a meaningful and purposive
interpretation, it is necessary for the Court
to ‘read into’ these provisions some aspects
without which these provisions are bound
to offend the doctrine of equality. Thus, we hold and declare that the expression ‘knowledge and experience’ appearing in these provisions would mean and include a basic degree in the respective field and the experience gained thereafter. Further, without any peradventure and veritably, we state that appointments of legally qualified, judicially trained and experienced persons would certainly manifest in more effective serving of the ends of justice as well as ensuring better administration of justice by the Commission. It would render the adjudicatory process which involves critical legal questions and nuances of law, more adherent to justice and shall enhance the public confidence in the working of the Commission. This is the obvious interpretation of the language of these provisions and, in fact, is the essence thereof.”

The underlined parts of summary of the “detailed analysis”, in Para 103 above are problematic.

But that was not the intention

The idea originally was to make information about the functioning of the government available to people as simply as possible. In fact, the precursor to the RTI Act specifically identified “the existing legal framework” as one of the “several bottlenecks” in the “free flow of information for citizens and non-Government institutions”.

It must be said, with due respect to the hon’ble supreme court, that its conclusion that “The Commission satisfies abecedarians of a judicial tribunal which has the trappings of a court,” is erroneous. This conclusion seems to reflect a somewhat different understanding of the entire purpose of the RTI Act than what is stated in the preamble of the Act itself which is reproduced below:

“An Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority, the constitution of a Central Information Commission and State Information Commissions and for matters connected therewith or incidental thereto.

WHEREAS the Constitution of India has established democratic Republic;

AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed;

AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information;

AND WHEREAS it is necessary to harmonise these conflicting interests while preserving the paramountcy of democratic ideal;

Now. THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it.”

It is interesting the supreme court did take note of the “Objects and Reasons” for the enactment of the ‘Freedom of Information Act, 2002’, the predecessor of the RTI Act of 2005, which it summarised in the judgment as follows:

“27. In terms of the Statement of Objects and Reasons of the Act of 2002, it was stated that this law was enacted in order to make the Government more transparent and accountable to the public. It was felt that in the present democratic framework, free flow of information for citizens and non-Government institutions suffers from several bottlenecks including the existing legal framework, lack of infrastructure at the grass root level and an attitude of secrecy within the Civil Services as a result of the old framework of rules. The Act was to deal with all such aspects. The purpose and object was to make the government more transparent and accountable to the public and to provide freedom to every citizen to secure access to information under the control of public authorities, consistent with public interest, in order to promote openness, transparency and accountability in administration and in relation to matters connected therewith or incidental thereto” (italics added).

From a simple and plain reading of the above, the preamble of the RTI Act of 2005, and the Statement of Objects and Reasons of the Freedom of Information Act of 2002, it will be clear that the essential purpose of these the two legislations was, and still is, to make information about the functioning of the Government available to citizens as simply as possible, without any impediments whatsoever. It is worth noting that the “Statement of Objects and Reasons of the Freedom of Information Act of 2002” specifically identified “the existing legal framework” as one of the “several bottlenecks” in the “free flow of information for citizens and non-Government institutions”.

By treating the information commissions as a “judicial tribunal”, and that too with “the trappings of a court”, the supreme court appears to have gone against the very spirit of the RTI Act.
The court further says that the information commission “will serve the ends of justice better, if (it) was manned by persons of legal expertise and with adequate experience in the field of adjudication”. While it is obviously beyond question that every law is meant to “serve the ends of justice” in the final analysis, but it seems worth remembering that the RTI Act is meant to serve an intermediate goal, of providing information to citizens, which, in turn, will assist them in seeking the final goal, of justice. Without having access to appropriate information, a citizen will be in a state of ‘ignorant bliss’ without having any idea of what justice is she being denied.

The RTI Act was enacted precisely because citizens found it impossible to get justice in “the existing legal framework” through the normal courts with all their “trappings”, so that citizens could get information on what they were being denied, without “the trappings of a court” and then take steps to get justice.

The above discussion will also show that the court’s observations about “administer(ing) justice to the people”, answering “critical legal questions”, observing “niceties of law”, “application of legal principles”, and “tilt(ing) the balance of justice”, are not applicable to the information commissions in the same way as they are to what might be called regular and usual “judicial tribunals”. The assumption of the supreme court that all or most of the appeals and complaints before the info commissions involve legal questions is negated by the observation of former information commissioner Shailesh Gandhi, who worked in that capacity for five years, that “85% percent of the cases need no legal interpretation”.

Judicial /administrative tribunals and information commissions

The supreme court relies on several previous judgments to conclude that information commissions are like judicial or administrative tribunals – like central administrative tribunal (CAT), for example. But the judgment cited refer to those articles of the consititution with which the RTI Act has little to do.
Another disturbing issue is the determination of the court that the information commissions are like judicial or administrative tribunals in their purpose and functioning.

The petition prayed for the issue of a direction to the Union of India “to amend the Right to Information Act, 2005 in consonance with the directions of this Hon’ble Court and /or the ratio laid down in Union of India Vs. Madras Bar Association, (2010) 11 SCC 1; Pareena Swarup Vs. Union of India (2008) 14 SCC 107; L. Chandra Kumar Vs. Union of India, (1997) 3 SCC 261; R.K. Jain Vs. Union of India (1993) 4 SCC 119; S.P. Sampath Kumar Vs. Union of India, (1987) 1 SCC 124”.

The most relevant judgment out of the five referred to above is S.P. Sampath Kumar etc. vs Union of India & Ors delivered on December 9, 1986. That particular judgment repeatedly makes it clear that the ‘tribunals’ that are being referred to have been created either in “substitution” of the high court or are intended to “supplant” the high court. The following three excerpts from the judgment should prove this beyond doubt.

“What is needed in a judicial tribunal which is intended to supplant the High Court…”

“Since the Administrative Tribunal has been created in substitution of the High Court…”

“It may be noted that since the Administrative Tribunal has been created in substitution of the High Court…”

No one should be in doubt that the information commissions are not, and never were, intended to either substitute for any court of law or to supplant it. Therefore, the judgments cited in the Namit Sharma petition actually are not relevant to the RTI Act or the information commissions at all. The hon’ble supreme court in its wisdom has decided to rely on these judgments for reasons which remain unfathomable.

The latest judgment referred to is Union of India Vs. Madras Bar Association, (2010), the concluding para of which reads as follows:

“We therefore find that these petitions relating to the validity of the NTT [National Tax Tribunal] Act and the challenge to Article 323B raise issues which did not arise in the two civil appeals. Therefore these cases cannot be disposed of in terms of the decision in the civil appeals but requires to be heard separately. We accordingly direct that these matters be delinked and listed separately for hearing.”

The opening paragraph of the judgment is very informative:

“In all these petitions, the constitutional validity of the National Tax Tribunal Act, 2005 (‘Act’ for short) is challenged. In TC No.150/2006, additionally there is a challenge to section 46 of the Constitution (Forty-second Amendment) Act, 1976 and Article 323B of Constitution of India. It is contended that section 46 of the Constitution (Forty-second Amendment) Act, is ultra vires the basic structure of the Constitution as it enables proliferation of Tribunal system and makes serious inroads into the independence of the judiciary by providing a parallel system of administration of justice, in which the executive has retained extensive control over matters such as appointment, jurisdiction, procedure etc. It is contended that Article 323B violates the basic structure of the Constitution as it completely takes away the jurisdiction of the High Courts and vests them in the National Tax Tribunal, including trial of offences and adjudication of pure questions of law, which have always been in the exclusive domain of the judiciary.”

It is clear from the above that the Madras Bar Association case, as in fact all other cases referred to in the petition, and on which the supreme court appears to have relied, are about tribunals set up under Articles 323A and 323B of the Constitution.

Since the RTI Act has no nexus with Articles 323A and 323B, and therefore is not intended to supplant or substitute any court of law, all these judgments cannot provide any guidance about how the information commissions should function.

Of course, the judgment repeatedly mentions that the information commission
is a quasi-judicial body but then
ends up directing that it should function
in court-like manner. What perhaps has
been missed is that it is not necessary to be
trained in law to be judicious. One does not
have to be ‘judicial’ to be ‘judicious’.

Dictionary meanings of judicious are (1)
using or showing judgment as to action or
practical expediency; discreet, prudent,
or politic: judicious use of one’s money;
and (2) having, exercising, or characterized
by good or discriminating judgment;
wise, sensible, or well-advised: a judicious
selection of documents. Given the overall
purpose and tenor of the RTI Act, it is this
kind of judicious mind that is needed to
function effectively as an information commissioner,
and not necessarily one having
a formal degree in law. Such a “judicious”
person will be perfectly capable of appreciating
and applying legal principles, which
is listed as one of the requirements by the
court in Para 103 of the judgment.

“Reading into” and “reading down”

A brief introduction to
a branch of knowledge called ‘Interpretation
of Statutes” shows that when a legislature
drafts a law, every word in it is
presumed to be intentional and carrying
only the normal meaning.

A portion of Para 103 of the judgment,
which deals with Section 12(5) of the RTI
Act, reads as follows:

“Thus, in order to satisfy the test of constitutionality,
we will have to read into
Section 12(5) of the Act that the expression
‘knowledge and experience’ includes
basic degree in that field and experience
gained thereafter and secondly that legally
qualified, trained and experienced persons
would better administer justice to the people,
particularly when they are expected to
undertake an adjudicatory process which
involves critical legal questions and niceties
of law” (emphasis added) (Para 103).

In a somewhat similar vein, Para 53 of
the judgment that deals with Section 12(6)
of the RTI Act reads,

“53. Having noticed the presence of the element
of discrimination and arbitrariness
in the provisions of Section 12(6) of the
Act, we now have to examine whether this
Court should declare this provision ultra
vires the Constitution or read it down
to give it its possible effect, despite the
drawbacks noted above. We have already
noticed that the Court will normally adopt
an approach which is tilted in favour of
constitutionality and would prefer reading
down the provision, if necessary, by adding
some words rather than declaring it
unconstitutional. Thus, we would prefer to
interpret the provisions of Section 12(6) as
applicable post-appointment rather than
pre-appointment of the Chief Information
Commissioner and Information Commissioners.
In other words, these disqualifications
will only come into play once a
person is appointed as Chief Information
Commissioner/Information Commissioner
at any level and he will cease to hold any
office of profit or carry any business or
pursue any profession that he did prior to
such appointment. It is thus implicit in this
provision that a person cannot hold any of
the posts specified in sub-section (6) of Section
12 simultaneous to his appointment as
Chief Information Commissioner or Information
Commissioner. In fact, cessation of
his previous appointment, business or profession
is a condition precedent to the commencement
of his appointment as Chief
Information Commissioner or Information
Commissioner” (emphasis added).

The above two paragraphs of the judgment
stand in stark contrast to each other.
Whereas Para 53 clarifies the true intention
of the legislature which was implicit
in the phraseology of Section 12(6) and
enhances the aims and objects of the RTI
Act, the excerpt of Para 103 given above
works to do just the opposite—defeat the
aims and objectives of the RTI Act as has
been explained above.

“Reading into” and “reading down”
legislation refers to a field of law called ‘Interpretation
of Statutes’ which lays down
rules and conventions for interpreting various
legislations. Some of the well-known
principles of interpretation, relevant to the
issue at hand, are the following:

— Legislature enacts a law with a definite
purpose. The object and purpose of the
Act is required to be advanced in order
to achieve its goal. In case of possibility
of more than one construction owing to
the ambiguity, the interpretation which
fulfils or furthers the object of the statute in question must be adopted. The interpretation
which will defeat or frustrate
the purpose of law must be rejected.
n Legislature uses certain language to
open its mind. The language is the only
source of the intention of the Legislature.
Therefore, the legislative intent
is to be primarily gathered from the
language of the statute. If the words of
the statute are sufficiently clear, they
themselves give out the intention of the
Legislature. In such cases, natural and
ordinary meaning should be attributed
to them. But where the words are
ambiguous, the courts have to ascertain
their true meaning and adopt that interpretation
by which the legislative intent
is carried out.

— Every word in a statute must be examined
in its context. It is a settled principle
that in interpreting the statute the
words used therein cannot be read in
isolation. Their colour and content are
derived from their context and therefore,
every word in a statute must be
examined in its context.

— There is a strong presumption that
Legislature is a good writer in its own
field and does not commit any kind of
mistake. This means that every word
used by Legislature in the language of
statute has been used mindfully, intentionally,
and suitably, and the language
employed by Legislature is proper and
does not suffer from any mistake. The
consequence is that the courts cannot
add, substitute or reject the words or
modify the language on the ground of
likelihood of errors. The courts have to
read the language as it is and give effect
to it in its true sense.

— The court cannot proceed on the assumption
that the Legislature does not
know what is says or that it has made
a mistake. It must be presumed that
the exact and correct words are used
in the statute. Court cannot presume
that Legislature has not used appropriate
words to express itself and in result,
while it intended to say something else, a
different meaning is coming out because
of wrong selection of words. Court also
cannot presume that certain words
which should have been present in the
language to avoid ambiguity are missing.
Court is further prevented from
presuming that the unsuitable words
have been employed by the Legislature
leading to uncertainty or unjust results.
Court also cannot presume that certain
words are excessive in the language
and even without them, the meaning
of provision is clear. As such the court
is barred from undertaking any addition,
substitution, rejection or supplying
of words or to modify the language of
the statute. The errors may creep into
legislation due to various reasons and at
different stages of the process of enacting
of the law. It must be assumed that
there is no defect and the Legislature had
intended what it has said.
n It is presumed that Legislature has each
word in its ordinary and natural sense
unless otherwise is proved beyond doubt.
This presumption attains greater force
when the words are precise and suffer
from no ambiguity. Therefore, it is the
duty of the courts to first assign plain
and ordinary meaning to the words.
The question is: What is meant by plain
and ordinary meaning? By plain and
ordinary meaning, it is meant the literal
and popular meaning. Statutes should
prima facie be construed literally, but
that only means that the document is to
be construed according to the grammatical
and ordinary sense of the actual
words employed in the Act itself. The
court should not proceed to attribute
any other meaning to the words of a
language except their plain and ordinary
meaning unless it is crystal clear
that they are ambiguous and reasonably
bear a technical meaning rather
than plain and natural meaning.

— The term Casus Omissus means cases
of omission. The rule of Casus Omissus
provides that omissions in a statute
cannot, as a general rule, be supplied by
construction. The omissions of Legislature
cannot be rectified by the courts.
A matter should have been provided
but actually has not been provided in a
statute, cannot be supplied by the courts.
No cannon of construction permits the
courts to supply a lacuna in a statute left
by the Legislature by inadvertence, because
such an attempt amounts to making
of law, which is beyond powers of
judiciary. It should be kept in mind that
the authority to enact, repeal, modify or
amend any law rests with the Legislature
alone and doctrine of separation of
powers strongly prohibits interference
of one arm of government into the functions
of another.

Without being presumptuous, it is necessary to point out that the learned and
hon’ble court seems to have overlooked
the essence of the above principles, particularly
in its pronouncement in Para 106(2)
which reads as follows:

“106(2). The provisions of Sections 12(5)
and 15(5) of the Act of 2005
are held to be constitutionally valid, but
with the rider that, to give it a meaningful
and purposive interpretation, it is necessary
for the Court to ‘read into’ these
provisions some aspects without which
these provisions are bound to offend the
doctrine of equality. Thus, we hold and declare
that the expression ‘knowledge and
experience’ appearing in these provisions
would mean and include a basic degree
in the respective field and the experience
gained thereafter. Further, without any
peradventure and veritably, we state that
appointments of legally qualified, judicially
trained and experienced persons
would certainly manifest in more effective
serving of the ends of justice as well as
ensuring better administration of justice
by the Commission. It would render the
adjudicatory process which involves critical
legal questions and nuances of law,
more adherent to justice and shall enhance
the public confidence in the working of the
Commission. This is the obvious interpretation
of the language of these provisions
and, in fact, is the essence thereof.”

In its above pronouncement, the hon’ble
court seems to be reading things into the
statute that were not intended by the legislature.
It is evident from the principles
of interpretation given above that had the
legislature intended that at least half of
the information commissioners should be
judges or be from the legal fraternity, it
would have said so in the RTI Act itself.
It must, however, be noted that the
hon’ble court has not actually changed
the law but it has made a definitive pronouncement
as follows:

“106(4). There is an absolute necessity for
the legislature to reword
or amend the provisions of Section
12(5), 12(6) and 15(5), 15(6) of the Act. We
observe and hope 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” (italics
added).

Implementation has its own problems

Even if only judges
are found to be qualified exeprts to run
information commissions, their appointment
terms and retirement age limits
clash.

In Para 106(8) of the judgment, the hon’ble
court has said, “We are of the considered
view that the competent authority should
prefer a person who is or has been a Judge
of the high court for appointment as Information
Commissioners. Chief Information
Commissioner at the Centre or State level
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” (italics added).
As has been pointed out by several commentators,
this direction is likely to create
several complications in the implementation
of the judgment, given that the retirement
ages of information commissioners
and chief information commissioners on
the one hand, and of the judges of the high
courts and supreme court are similar.
Here again, the hon’ble court seems to
have overlooked one of the cannons of
interpretation according to which it is presumed
that the intention of the Legislature
is always fair and it does not do anything
which is unreasonable. Legislature never
intends to create any kind of inconvenience.
As such, no law should be so interpreted
as to arrive at unreasonable results.
A construction by which inconvenience is
caused should be avoided.

Another anomaly in the same paragraph
is the observation that “A law officer or a
lawyer may also be eligible provided he
is a person who has practiced law at least
for a period of twenty years as on the date
of the advertisement”. The anomaly arises
from the fact that Article 124(3) of the Constitution
provides that a person who has been an advocate of a high court (or of two
or more such courts) for at least 10 years
is eligible to be appointed as a judge in the
supreme court. Similarly, Article 217(2)
of the Constitution provides that a person
with an experience of 10 years as an
advocate in a high court is eligible for appointment
as a high court judge. It seems
strange that a person is eligible for appointment
as a judge of the supreme court
but may not be eligible to be appointed as
a chief information commissioner!

A point worth noting

The judgment correctly lists Namit Sharma
as the “petitioner” and the Union of India
as the “respondent”. However, the judgment
does not mention any arguments on
behalf of the respondent. It appears from
the judgment, though it cannot be said
with complete confidence, that there were
no averments on behalf of the respondent!
Does one assume that the respondent, the
Union of India, was in agreement with
all the prayers and contentions of the
petitioner?

“No robes,
no lawyers,
no liveried
attendants”

That is what the central
information commissioner said, “because
what the citizen seeks does not go
with so much of serious formality”.

The central information commissioner’s view

Before moving on to discussing the prime
minister’s speech, it is worth considering
what the chief information commissioner
(CIC) said in his welcome address on the
seven-year celebration of the RTI Act.
Some relevant portions of the address are
discussed below.

While specially welcoming the minister
of state for personnel and training, the CIC
said, “We need him the most at this time
when we have reached the fork under our
feet and not sure which way the future
lies.” The expressions “reach(ing) the fork”
and not being “sure which way the future
lies” are very meaningful in the situation
that the RTI Act currently faces.

The CIC almost directly commented on
the Namit Sharma judgment when he said,
“The approach of the Commissions in all
these years has been to act like an umpire
standing right on the field along with the
players and not sitting on a pedestal and
pronounce oracles. Openness of approach,
informality in style and simplicity of systems
have characterised the functioning
of the Commissions. No robes, no lawyers,
no liveried attendants because what the
citizens seek does not go with so much of
serious formality. Excessive judicialisation
of the Information Commissions will rob
these institutions of their flexibility” (italics
added).

The following observation highlights why
the RTI Act is different from other legislations:

“The right to information is the mother
of all other rights of citizens. Intelligent
and responsible use of this right has the
potential to correct many infirmities in the
government and make corruption difficult.
Therefore, it is extremely important that
the civil society and the media do not lose
sight of the right to information, and keep
supporting it steadfastly” (italics added).

The CIC also expressed his helplessness
with inaction, or inadequate action, on the
part of the central and state governments
thus, “We have been exhorting government
authorities both in the Centre and
the States to appoint responsible Information
Officers, train them regularly and,
most importantly, to modernize recordkeeping
at all levels. We have hardly
met with much success. Similarly, all our
efforts to ensure proactive disclosure as
mandated under the Right to Information
(RTI) Act have been ineffective. Seven
years after the enactment of the law, most
public authorities, both in the central and
state governments have not made the complete
disclosure which they should have
done within 120 days. Poor record-keeping
and failure to disclose the mandated information
are the twin causes for the increase
in the RTI demands and the dissatisfaction
of the people at large.”

Meanwhile, PM has other concerns in mind

Instead of nurturing the UPA baby, the
prime minister seems hell-bent on strangulating
it. What otherwise is the point
of brining to the table concerns of privacy
and obligations and so on?

This brings us to the speech made by the
prime minister on the seven-year celebration
of the RTI Act on October 12. Amongst
many other things, the prime minister,
admitting that there was “some confusion
about the implications of the recent Supreme
Court order regarding the composition
of the Central and State Information
Commissions”, said that “the government
has decided to go in review before the
Supreme Court in this matter”. It is to be
hoped that the Union of India will be more
active and do better in the review than it
did in the original petition!

The prime minister’s speech was extremely
important in view of the repeated
attacks that the RTI Act has faced, and survived,
in the recent months though it must
be said, with immense sadness, that several
RTI activists have not been so lucky.
The prime minister, after a few, and
brief, laudatory references to the RTI Act,
immediately moved on to “some obvious
areas of concerns about the way the Right
to Information Act is being used presently”.
He then pointed out that he “had
flagged a few of them when I addressed
this Convention last year”, thus stressing
that, according to him, it seemed to be a
recurring problem.

He listed “frivolous and vexatious use
of the Act in demanding information the
disclosure of which cannot possibly serve
any public purpose”, and “infringement of
personal privacy while providing information
under the Right to Information Act”
to be two of the major concerns. He then
went on to speak about rights and responsibilities,
in the following words:

“Rights, of course, cannot stand in isolation
and must always be accompanied by
reciprocal obligations. I had pointed out
in my address to this Convention in 2008
that while asserting our rights we need to
be equally conscious of our responsibilities
and our commitments. I believe that all
of us share a responsibility to promote
more constructive and productive use of
the Right to Information Act. This important
legislation should not be only about
criticizing, ridiculing, and running down
public authorities. It should be more about
promoting transparency and accountability,
spreading information and awareness
and empowering our citizen. I think that
there is need for all of us to work towards
building an environment where citizens
see the government as a partner and not as
an adversary.”

Two concerns stand out in the above
paragraph. One is about citizens becoming
more aware and conscious of their
rights, and using the information obtained
to hold public authorities to account. The
other, and related, concern is about the follies
of public authorities becoming public
knowledge.

A comparison of the PM’s speech, delivered
on October 15, 2006, on the completion
one year of the RTI Act, with the one
after seven years is revealing. Some pertinent
observations of the PM in 2006 are
given below:

— “This is indeed a milestone of great
importance in the evolution of Indian
democracy…

— Presenting the case in support of the
Bill in Parliament, I had expressed the
hope that the passage of the Bill will see
the dawn of a new era in our processes
of governance, an era of performance
and greater efficiency, an era which will
ensure that the benefits of growth flow to
all sections of our people, an era which
will help to eliminate the scourge of corruption,
an era which will bring the common
man’s concerns to the heart of all
processes of governance, an era which
will truly fulfil the hopes of the founding
fathers of our Republic…

— What is of particular satisfaction is that
it has become clear that the citizens of
our country have owned this Act with
their arms wide open. This has become,
if anything, a ‘Peoples’ Law’…

— The implementation of RTI Act is, therefore,
an important milestone in our
quest for building an enlightened and
at the same time, a prosperous society.
Therefore, the exercise of the Right to
Information cannot be the privilege of
only a few…

— This Act is the consummation of a process
initiated with the adoption of our
Constitution…

— Hence, the criticality of the right to
information and this Act is but the
means for accessing it. We have kept
these means simple, with overriding
importance given to “public interest”,
sweeping aside much of the legacy of
colonialism. In many ways, this Act is
the logical culmination of the dreams of
our founding fathers.

— The true determinant of success must
be how many people have actually used
this Act, and their level of satisfaction with the information so obtained…

— …(A) great deal more needs to be done.
All public authorities must ensure that
all records that can be computerized are,
within a reasonable time and subject to
availability of resources, computerized
and connected through a network all
over the country…

— I am sure that there will always be various
opinions about the interpretation
and implementation of some provisions
of the Act. This is true of any legislation
– particularly those that usher in
far reaching changes. In a democratic
society, sometimes, it takes time for new
ideas to take firm root. This is part of the
learning curve any legislation has to undergo.
We need to evolve a consensus
to facilitate the effective exercise of the
right to information by the needy, by
those who are directly affected by the
information. We need to balance the
need for information with the limited
time, material and human resources
available with public authorities. Vexatious
demands should not be allowed
to deprive genuine information seekers
of their legitimate claims on limited
public resources. We must also realize
that laws, over a period of time, adapt
themselves to changing realities as
societal perceptions change and most
importantly, right to information is not
a substitute for good governance. It has
to support and aid the process of good
governance…

— The positive manner, in which all stakeholders
have responded to the challenges
posed by this Act, encourages me
to imagine that a time may come when a
citizen may not have to make an application
for seeking information under this
Act. Public authorities could place on
their own, more and more information
in the public domain, with easy access
as mandated by the Act…

— …(I)t shall be our endeavour to
strengthen the implementation of the
Act in favour of genuine information
seekers and the people. The Act has
been a matter of pride for the UPA
Government. It was a commitment we
made to our people. Therefore, we are –
as, if not more, interested in its abiding
success.

— We will continue to pursue the goal of
ensuring the fullest and freest flow of
information under this Act. We shall
work with all stakeholders for promoting
effective usage of the rights
granted under this Act. I assure you the
complete support of our government in
achieving fully the aims and objectives
of this Act. We remain firmly committed
to its effective implementation in letter
and spirit” (Italics added).

The positive tone and tenor of the 2006
speech seem to have been replaced by a
deep concern for preventing citizens from
“criticizing, ridiculing, and running down
public authorities”.

Concern for privacy

The second major concern of the PM
seemed to be “infringement of personal
privacy”. He also revealed that a group had
been constituted to advice the government
about the basis on which the privacy law should be formulated. Coincidentally, the
Report of the Group of Experts on Privacy
(Chaired by justice AP Shah, former chief
justice, Delhi high court) became available
on October 16, just four days after the PM’s
speech. As expected by the PM, this Group
of Experts did apply their minds specifically
to the issues on the interface of the Right
to Information and the Right to Privacy,
and this is what they said:

“4.2. The Right to Information: In many
countries citizens are able to hold governments
transparent and accountable
through Freedom of Information laws,
Access to Information laws, and Public
Information laws. In India, the Right to
Information Act works to promote transparency,
contain corruption, and hold the
Government accountable to the people.
The RTI establishes a responsibility on
public bodies to disclose preidentified
information, the right of citizens to request
information held by public authorities
from public information officers, and
creates a Central Information Commissioner
responsible for hearing/investigating
individual complaints when information
is denied. In the context of the RTI
Act, every public authority must provide
information relating to workings of public
authorities as listed under section 4 (1(b))
to the public on a suo motu basis at regular
intervals. Section 8 of the Act lists specific
types of information that are exempted
from public disclosure in order to protect
privacy. In this way privacy is the narrow
exception to the right to information. When
contested, the Information Commissioners
will use a public interest test to determine
whether the individual’s right to privacy
should be trumped by the public’s right to
information. There exist more than 400
cases where the Central Information Commissioner
has pronounced on the balance
between privacy and transparency.

4.3. When applied, the Privacy Act should
not circumscribe the Right to Information
Act. Additionally, RTI recipients should not
be considered a data controller” (italics
added).

Just for the sake of complete clarification,
Section 8(1)(j) of the RTI Act is reproduced
below:

“8. (1) Notwithstanding anything
contained in this Act, there shall be
no obligation to give any citizen,—

xxx xxx xxx xxx

(j) information which relates to
personal information the disclosure of
which has no relationship to any public
activity or interest, or which would cause
unwarranted invasion of the privacy of the
individual unless the Central Public Information
Officer or the State Public Information
Officer or the appellate authority, as
the case may be, is satisfied that the larger
public interest justifies the disclosure of
such information:

Provided that the information which
cannot be denied to the Parliament or a
State Legislature shall not be denied to any
person.”

It should be clear from the above that the
RTI Act does not permit “unwarranted invasion
of the privacy of the individual” unless
“the larger public interest justifies the
disclosure of such information”. There is,
thus, no conflict whatsoever in the provisions
of the RTI Act and the requirements
of personal privacy, and any issues raised
under this are red herrings.

What does this double whammy mean?

It is quite clear that
the RTI Act is under serious attack. The
bureaucracy and the political establishment
have always had an acute sense of
discomfort due to their actions being open
to public scrutiny. This transparency has
made it extremely difficult, if not impossible,
to cut sweetheart deals under the garb
of confidentiality and secrecy. The repeated
attempts, made with regular frequency, at
diluting the RTI Act and making it toothless
under the garb of making it easier to
implement are eloquent testimony to this
phenomenon. The recent withdrawal of the
proposal to amend the Act by the Cabinet is
at best an attempt to lull the civil society in
to complacency.

The higher judiciary has had an interesting
response to the RTI Act. On the one
hand, it has been very supportive of the
Act in its pronouncements on various decisions
of the CIC that have gone up to it for
adjudication. However, on the other hand,
it has not taken kindly to the demands of
opening up its inner workings, even on the
administrative side, to public scrutiny. This
apparent unwillingness for public scrutiny
has created some bizarre situations such
as the supreme court filing an appeal in
a high court, and when the high court
decision was not to its liking, the administrative
side of the supreme court filing
an appeal to the judicial side of the same
supreme court!

The RTI Act will need all the support of
the people and what may be called the RTI
community to save it from this twin onslaught.
The adversaries are powerful and
ingenious, and the struggle will be long
and hard, it might even be an unending
one and may even turn into a war of attrition
but it must be won.

Chhhokar is a former professor, dean, and
director in-charge of IIM, Ahmedabad. He
now lives and works in Delhi.

——————————————————-
NIKHIL DEY

MEMBER, NATIONAL CAMPAIGN FOR PEOPLE’S RIGHT TO INFORMATION

Bringing the judicial style of working to CIC might affect the user-friendly nature of commissions as the processes would become more complicated. Also no time-frame has been given by the apex court for the implementation. This has halted the working of some information commissions. When chief information commissioners at central and state levels are retired or serving judges, expert members would not enjoy the equality.

Ninety percent of the RTI Act would have died had disclosure of file notings been restricted, as file notes are at the heart of the Act. Similarly, (information on) examination papers and selection process is one big area where lack of transparency pervades, and that would have been washed away as well. The amendments (proposed but dropped by the cabinet) also barred queries on executive decisions till the process is completed. That, too, would have restricted the Act. So it’s a welcome step and an important victory. But if the UPA is really serious about governance, it should pass the Lokpal bill.
————————————————————————–
SHAILESH GANDHI

FORMER INFORMATION COMMISSIONER AT CIC

There are a lot of problems with the commission. But
we need to understand that it does not work like a
court. We know that a transparent method to appoint
commissioners is required but filling all the posts
with the retired judges is definitely not the right approach.
Today a major problem with the commission
is the pendency of cases. If the supreme court judgment
is to be implemented, it would require each appeal
to be heard by two commissioners rather than
one. This will drop the output by 50% and pendency
will further increase. It is an extremely dangerous
move and it will kill RTI.

[Dropping RTI amendments] is not a major development as it is seen. Prime minister
Manmohan Singh spoke about several issues at the RTI convention, and the
supreme court gave four rulings over the last one year, which happen to restrict the
Act. So what really has now prompted the government to announce this (decision
to junk the proposed amendments)? My worry is what will follow next — the ideal
situation would be for the government to issue a statement that the Act will not be
amended at all.
————————————————————————
VENKATESH NAYAK

CONVENER, NATIONAL CAMPAIGN FOR PEOPLES’ RIGHT TO INFORMATION

The judiciary can interpret the law or can expand
it if there is no clarity. They cannot indulge
in lawmaking when something is clearly mentioned
in the law. The positive aspect is that if
there is at least one judicial member, it will ensure
greater say of law in decision-making. But
the downside is that it will reduce the output of
the commission. The cases heard and disposed
of would be drastically reduced and it will become
an expensive process.

The decision of the cabinet to withdraw amendments
to the RTI act is welcome indeed. This matter had been hanging over people’s
right to know like the proverbial sword of Damocles since August 2006. Many
experts, activists, organisations, advocates and votaries of RTI have worked hard
to turn around the government’s thinking on the issue of file notings which formed
the crux of the proposed amendments.

A law that is put together by consulting people will be defended by people themselves.
The people have defended the law against a rollback in this case.
Everybody who lent a hand to push for this change of thinking deserves to be
congratulated. The government also deserves to be congratulated for changing its
mind.
———————————————————————
SUBHASH CHANDRA AGRAWAL

RTI ACTIVIST

The court verdict on appointment of information
commissioners has virtually signed a
death warrant for the RTI Act. It implementation
will effectively make approaching an information
commission totally impractical.

The government’s decision to withdraw the
amendments is a positive step. But there is
still lot of confusion. The PM’s speech at the
RTI convention had ideas to restrict the Act.
So there has always been a double talk on RTI.
This Act has always been seen as a hindrance
to the governance system, but it is important to protect it.
————————————————————————–
“The approach of the Commissions in all these years has
been to act like an umpire standing right on the field along
with the players and not sitting on a pedestal and pronounce
oracles. Openness of approach, informality in style and
simplicity of systems have characterised the functioning of the
Commissions. No robes, no lawyers, no liveried attendants
because what the citizens seek does not go with so much of
serious formality. Excessive judicialisation of the Information
Commissions will rob these institutions of their flexibility.”

Satyanand Mishra
Chief information commissioner, central information commission

————————————————————————

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Kindly listen to the audio-file of a speech given by me on Akashvani at link given below:

Many critics of RTI Act have not cared to understand the law.


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    This blog contains Jagdeep S. Chhokar’s views, opinions, and comments on variety of issues.

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