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.