A Recent Supreme Court Ruling Could Kill RTI

Why the recent Supreme Court ruling threatens to kill citizens Right to Information

By Udit Misra
Published: Oct 3, 2012
Image: Getty Images

The Supreme Court has placed the Central Information Commission (CIC), the apex body to deal with appeals regarding RTI, as well as the Information Commissions across the states in a fine pickle.

On September 13, a division bench of the Supreme Court, chaired by Justice AK Patnaik and Justice Swatanter Kumar, passed an order which would fundamentally change the constitution and working of Information Commissions. Apart from the operational problems, the suggested changes would require an amendment to the RTI Act by the government. As a result, none of the information commissioners know whether to discharge their duty and, if so, how. Moreover, many RTI activists are complaining about a blatant case of judicial over-reach.

“The SC can say something is wrong and needs to be changed but they can’t order the legislature to make a law according to their directions,” says Subhash Agarwal, a prominent RTI activist in New Delhi.

The Order
The SC has ordered that Information Commissions should henceforth hear appeals as two-member benches, replacing the existing norm of each member working separately. What further complicates the matter is the ruling that one member in each bench should necessarily be a ‘judicial’ member. By ‘judicial’, the SC implies someone who has practised law for 20 years or preferably a judge or a retired judge of the SC or a high court. Lastly, the Chief Information Commissioner at the Centre and the states should also be a judicial member.

The Disorder
The Central Information Commission has eight active members, including the chief, out of the total 11 vacancies. Not one among them is a judicial member. Nobody, including the commissioners, is clear how they should function, considering there are no judicial members to constitute even a single bench. Even when judicial members join, the bunching of two members in a team is likely to slow down the disposal rate because there will only be half the outlets dealing with complaints, not to mention the increased time taken when two members deliberate. “Effectively the disposal of pending cases will drop to about 50 percent of the current disposals,” says Shailesh Gandhi, a former Information Commissioner at the CIC. The probable rise in pendency to almost five years could sound the death knell for the Act, according to Gandhi.

Certain other elements in the order have confused observers. For instance, it is unlikely that a sitting judge will ever leave the Supreme Court to join the CIC. Yet ironically, a retired judge of the SC would also not be able to join since both the SC and CIC have the same retirement age of 65 years. It is not clear why the head of Information Commissions must necessarily be a judicial member. “If anything, he or she needs to have some administrative acumen over and above a regular member,” says Agarwal.

Still, not every thing is wrong with the SC order. One view is that the inclusion of judicial members is likely to bring some diversity in the appointees to these commissions, often described as a parking lot for bureaucrats. “While the decisions will be more robust, one is still afraid that the real loser might be the common man who may find it too daunting to represent himself in front of a judge and may incur additional costs in hiring lawyers,” says Anjali Bhardwaj, member of the National Campaign for People’s Right to Information.


(This article is excerpted from the latest Forbes India 12 October, 2012 issue which is now available at news stands and book stores. You can buy our tablet version from Magzter.com)

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  • T.venkatesh

    Sir, I feel that any member of State or Central should be background knowledge of Law. The appeals, and further appeals higher and apex members should and must be the background of law. Any information can be provided except in the information that should not be danger to the state and central. When the do-gooder getting some information to the public it should and must be provided without any hesitating.

    on Mar 1, 2015
  • Sanjay Patil

    judicial member is a must in every commission because bureaucrats dont have judicial nature they are used to take decisions which suite there mentality they dont work or think for the society taking decision in the interest of people and nation needs mentally prepared persons An article on CAGS in The Hindu has revealed their state of mind and working capacity for the nation and people we cannot expect any thing from these persons who only live to eat and not eat to live

    on Sep 16, 2013
  • Ram Nagina Singh

    The apex court has passed the order in the right way. one amendment should also be done , so unnecessary RTI is not filed as the most of the departments are engaged to reply the same. The mos. Of politicians are using as tools for votebanks. The RTI should be filed for public welfare.

    on Jul 11, 2013
  • Thagnass

    This is the Best.. Subhash lacks total knowledge.. Our sad thing is that CITIZENS never ask their right.. it is only the road side vagabonds that take the RTI in their hand in the name of citizens

    on May 21, 2013
  • Govindaraj.s

    The consumer forums are set up at district level, state level and national level. If the same set up is brought to deal with RTI Act cases and appeals, and appointing the retired judges to hear RTI Act cases, the enactment would serve its purpose.

    on Feb 8, 2013
  • Govindaraj.s

    The information commission may be reconstituted just like a consumer forum which is having its presiding officer a retired judge. Then only the implementation of RTI Act would be effective.

    on Feb 8, 2013
  • Dinesh Sharma

    Why SC is making weak RTI act of 2005 as people of India is suffering badly thier daily routine life.

    on Dec 21, 2012
  • Haridas Mandal

    I am now suspicious . Forbes India, which list Billionnaires and Crore paties interested in RTI Act to survive? Some thing very very fishy!! I think Desi/ Videshi and well off NRI are sponsoring this activity against the judiciary. Ex - Bureaucrats will be the real beneficiaries if SC judges balked down. Let it be referred to 11 members judicial bench with statuesquo maintained with a specific time limit.

    on Dec 3, 2012
  • Avnish

    RTI act 2005 has been killed by the decision of Supreme court of Indian in the recent judgement. Details of investigation report, censure report etc are considered to be personal information as per the decision of supreme court decision.Then how could the transparency and accountability be ensured in cases related to the corrupt officials.Subsequently RTI act will certainly fail to check the corruption

    on Oct 18, 2012
  • Dr. P.k. Aditya

    Perusal of the order shows that it is based upon the RTI Act; except that the sections which provide qualifications and experience lack necessary grit. Bureaucrats book their seats much before superannuation, and being protagonists of Official Secrets Act, anti-transparency, just put on the cloak of RTI. Can a quasi-judicial tribunal function without any judicial inkling, is the question. The Commissions have power to get public authorities do as the Act demands, if it by itself lacks commitment. The Act demands so much information to be put on websites that public make minimum use of making applications. But websites, if there, are in a woeful state. Information is not cataloged and indexed, hence requests for inspection are turned down. Process of requested information to be completed in 30 days, is blocked when on 29th day the requester is informed that his question is not clear. Instead of imposing penalty if information is not supplied, the PIO is just let off. It is a thorough overhaul as the Apex Court has ordered which can put RTI on the rails. Thanks

    on Oct 4, 2012
  • Shailesh Gandhi

    Some key problems with the Supreme Court judgement in Namit Sharma vs. Union of India in WP no. (C ) 210 of 2012 : (Most of the issues are at point 8 of the directions) 1. The judgement orders that all Chief Information Commissioners must be retired Chief Justices of High Courts or Supreme Court. It also stipulates that the Information Commission must adjudicate in benches of two, with one being a former High Court judge. The retirement age of Commissioners is 65 and the retirement age of SC judges is also 65. Hence only retired High Court Chief Justices only can be Chief Information Commissioners. Where will the Nation find 28 retired Chief Justices to head all the State commissions? Thus there will no selection. All Chief Justices of High Courts will have one guaranteed job. 2. The judgement states it is applicable ‘henceforth’. This has resulted in 28.5% State Commissions,- including Maharashtra,- to suspend their operations. This could continue for another three to five months atleast. The adjudication on a matter concerning the fundamental right of Citizens has been suspended suddenly, -without any urgent reason,-and all these Commissions are on a holiday wasting the money of the poorest citizen who may be starving to death. 3. Whereas the RTI Act provided for eleven Commissioners who could hear cases in 11 benches, the judgement reduces these to a maximum of five benches, since there have to be two member in every bench. Retired High Court judges will be difficult to find and this may result in the Information Commissions going into a dormant state. Besides judges are likely to bring their habits with them resulting in adjournments and legal finesse which will become ideal for lawyers. This will take away the simple manner in which ordinary citizens are able to deal with the Commissions. 4. If the maximum number of benches per Commission is 5 it is unlikely that they will clear over 3000 cases per bench, ie. 15000 cases per Commission annually. The Central Commission, Maharashtra Commission and the UP Commission get much over 20000 cases each year and this is growing. A simple projection shows that in these and many other Commissions the pending cases will become over five years in the next five years. The ‘aam admi’ in whose name we profess to act will no longer use RTI, just as he has gone away from the Consumer forums, judiciary and many other forums. In that event the potential of RTI to change the face of Indian democracy will be lost. This will result in the pressure on public servants to respond to RTI queries being reduced considerably. 5. Internationally over 90 countries have access laws now. Over 35 of them have Information Commissions. None of them have a requirement of having ‘judicial members’. Most of them do not have a requirement of multiple member benches. 6. In India many quasi-judicial bodies are in existence without ‘judicial members’. 7. The Court has talked of legal interpretations and third party issues to order the requirement of retired judges. A study done by legal interns with me of the Central Commission’s decisions for the period January to April 2012 (attached) shows that any legal interpretation is involved only in about 15% of the cases. Is it right that two member benches should be adjudicating all the matters? Even in the High Court many matters are heard by single judges. Does it appear right that there should be two senior citizens adjudicating all RTI matters? There is a very strong possibility that RTI Commissions will become irrelevant for most citizens, and this will have a serious deleterious impact on the exercise of this fundamental right. 8. The judgement has made decisions which should really be in the jurisdiction of Parliament and the executive. If judiciary takes these decisions, the division of power envisaged in the Constitution is unbalanced and this gives no opportunity to Citizens to discuss and debate such matters. 9. Citizens must discuss this judgement and request the Supreme Court to apply its mind to this, since it is likely seriously impinge on the fundamental right of Citizens which Citizens have given to themselves thorough their representatives in Parliament.

    on Oct 3, 2012
  • Vijay Trimbak Gokhale

    on Oct 3, 2012
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