The Supreme Court order on the appointment of Information Commissioners has had an unsettling effect on the working of the Right to Information Act, an elegant seven-year old law that has immeasurably empowered the average citizen. What was designed as an easy-to-use legal tool for the poor and weak may now be at risk of getting tangled in a web of complexity. The Court has, inter alia, ruled that the competent authority should prefer a person who is or has been a judge of the High Court for appointment as Information Commissioners, while the head of the Information Commissions at the Centre or State shall only be a person who is or has been a Chief Justice of a High Court or a Judge of the Supreme Court. The reasoning is that these bodies perform judicial and quasi-judicial functions and such qualifications are essential to meet the ends of justice. The decision comes in the wake of complaints that the system of appointing Information Commissioners lacks transparency. That is true. Some States follow a closed-door appointments process, packing Commissions with favoured bureaucrats and political loyalists. Yet, the scale of the remedy is excessive. By specifying qualifications for appointments and instituting new working methodologies for Commissions, which it wants legislated, the court clearly intrudes into executive privilege.
The RTI Act has escaped many attempts by the Centre to whittle down its scope, with civil society rising to its defence each time. Given the culture of secrecy and pervasive corruption, the law is a nightmare for many in authority. But it has weathered the test of judicial scrutiny. Major questions on its scope have been decided by the courts, including high profile issues such as the judges’ assets case. Also, the majority of appeals before Information Commissions are those filed by citizens seeking simple information. The exceptions on disclosure under Section 8 of the RTI Act are clear, and the law leaves all other information held by public authorities open — there is little scope there for judicial interpretation. In any case, several orders of the Commissions in favour of citizens are challenged by officials in regular courts. So far, the appellate process has been refreshingly uncomplicated, as the applicant can appear in person, without the need for advocates, and the proceedings are in plain language. If poor citizens have to appear before a bench that has a judicial member and face lawyers employed by public authorities, the resulting asymmetry of power would clearly defeat the purpose of the law. The Supreme Court is correct in calling for due advertisement and a rational basis for appointments to Commissions. But it should leave that task to Parliament to execute.
Keywords: RTI Act, asymmetry of power, pervasive corruption, judicial scrutiny
RTI was enacted to help the needy and poor seek information in a convenient and transparent manner without getting trapped in an unjust cobweb woven by some of the corrupt-minded bureaucrats.Indian judiciary should take stern measures that an open system of electing commissioners should be in place and miscreants who do favouritism in electing and appointing them by taking bribes should be brought to book.Though it is the prerogative of the parliament to enact laws but for the laws to function correctly,it is judiciary who has to take a stand on it.
Could public inquiries not be conducted by inspectors belonging to a
pool of experts from which a right person oculd be drawn at the right
time? Why prepare people for a particular task and then set them a whole
series of quite different and unexpected challenges for which it is
posible they are ill-equipped?....Judges it seems to be should be
particualrly reluctant to accept any quasi-judicial function of an
ongiong, statutory nature……” Wieghty questions these and would need to
be addressed by the jurists and the courts at home too.
It is the prerogative of the parliment, to legislate on any matter in the law of land.yet, it is responsibility of the judiciary, to put the parliment in the right direction if it tends to deviate.
In the editorial,author has rightly pointed out,it is beyond judiciary's capacity to intrude into the parliment's functioning and it is parliments responsibility to observe the orders and correct it if any.
I wonder as to how the S.C. verdict on the appointment of Information Commissioners will have an unsettling effect on the working of the RTI Act. In my own experience, it was found that the Commissioner was sympathetic to the erring bureacrat than to the appellant. In the video conference which was arranged after a year of filing the appeal, the Commissioner instead of questioning the official concerned was questioning the credibility of the appellant and asking him to approach the Supreme Court if not satisfied with his decision. It was felt that had the Commissioner been from the judiciary or from outside the bureacracy, the treatment to the hapless appellant would have been different. If appointment of Judges of the Supreme Court as Commissioners is difficult, it would be better if they are from the ex-Judges of High Court or from eminent citizens with legal background and proven record of impartiality and committment to common/public cause.
The very soul purpose for "Right to information Act" will be jeopardized
if it gets re-weaved in the threads of judicial system. The Act was put
into place for the transparency and convenience of common man. Too much
authority and procedures would make the Act lose its image and
credibility and would create scope for corruption and violation.As
quoted in the article, it would create "asymmetry of power" and this power dynamics would go in favor of authorities.
Right to information Act has really been a boon to the citizens. The present procedure to get required information from the authorities concerned being simple to the extent of enabling even laymen secure it easily, the court ruling which requires strict adherence to a set of certain new stipulations- quite obviously excessive at a time when the scheme in vogue is functioning satisfactorily - should not end up in creating confusion.As rightly pointed out in the editorial, "An excessive remedy", prior advertisements for filling the vacant posts and complete transparency in making appointments to the Commission are adequate safeguards for ensuring their proper functioning. The fear the RTI Act in its present form has created in the minds of those in authority and prevented them to a great extent from violating the rules, should not be allowed to be diluted at any cost.
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