Et tu, SC? Why the apex court order may kill RTI

The Supreme Court did not cover itself in glory when it ruled last week that all Information Commissions set up under the Right to Information Act (RTI) should work in benches of two, with one of them being a judicial member who has served on a high court bench.

This is a disastrous judgment for the RTI, which is supposed to be an instrument for empowering the common man against the mighty administration. The net impact of the judgment, which was delivered by a two-judge bench comprising Justices AK Patnaik and Swatanter Kumar, is that half the positions of information commissioners will have to be former higher court judges.

The bench passed the order in a public interest litigation (PIL) filed by one Namit Sharma who challenged sections 12 and 15 of the RTI Act of 2005, which specify the qualifications needed for becoming an information commissioner. Among other things, the order said that the office of Chief Information Commissioner in centre and states should be headed by former (or current) Supreme Court judges or chief justices of high courts (past or present).

 Et tu, SC? Why the apex court order may kill RTI

The Supreme Court of India.

There are several reasons why this judgment could sound the deathknell of the RTI Act. Here are some of them.

First, the judgment, though intended to improve the quality of information commissioners and their quasi-judicial verdicts, just smells wrong. The Supreme Court should not be seen to be seeking to give fellow judges a leg up in the post-retirement job market. According to an Indian Express report, judges of the Supreme Court are anyway being offered all kinds of superannuation jobs.

The newspaper said that of the 21 judges to have retired from the Supreme Court since January 2008, 18 got jobs in different government commissions and tribunals.

Now, after the RTI verdict, judges in higher courts will find even more jobs. Currently, seven of the eight or nine central information commissioners are former bureaucrats. In future, they will be joined by judges.

Second, the fundamental purpose of the RTI is to empower the ordinary citizen against stonewalling by bureaucracy and people in power. This means the key information commissioners should be people with empathy for the common man and must be guided by commonsense. Adding high court and Supreme Court judges to the mix, which will bring in more legalese to the appeal process, is not going to help.

Third, the judges, inter alia, gave this reason for their order “…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.”

But do more judges make for a better RTI Act? Do bodies like the information commission need judges or merely people with some judicial training? Wouldn’t it be enough to have a judicially-trained officer aiding them in their decisions?

Fourth, the fact is there are simply not enough judges available. The Central Information Commission has a provision for 11 information commissioners, and if half of them have to be high court or Supreme Court judges, it will be a tough ask. The alternative is to double the number to 22, and add the judges when they are available. But that’s a tougher ask.

Somasekhar Sundaresan, writing in Business Standard, points out that there aren’t enough judges to fill vacancies even in existing statutory bodies which are mandated to be run by ex-judges. He writes: “The Securities Appellate Tribunal, which is statutorily required to be presided over by a retired Supreme Court judge or a chief justice of a high court, is without a presiding officer for nearly a year now. It is said that no retired Supreme Court judge who meets the statutory criteria is willing to leave Lutyens’ Delhi and shift to living in an apartment in Mumbai.”

So is there much chance that Supreme Court judges will be happy to shift to state capitals and state information commissions after their bench days are over?

Fifth, judges of the top court retire at 65, and finding places for them after that means the information commissions will be stuffed with old fogies nudging their 70s – assuming they are given a fixed tenure. Is this idea conducive to improved handling of RTI cases?

The Hindu quoted social activist, Commodore (Retd) Lokesh Batra as saying: “It is not clear how a Supreme Court Judge who retires at the age of 65 can be appointed to the post of Chief Information Commissioner or an Information Commissioner when the retirement age for these posts is also 65?”

Sixth, appointing judges may well delay the RTI processes. MoneyLife quotes Shailesh Gandhi, a former Central Information Commissioner, as saying that delays will worsen. “Effectively the disposal of pending cases will drop to about 50 percent of the current disposals. This will lead to commissions deciding cases after five years or more in the next few years."

In an interview to Firstpost two months ago, Gandhi said the biggest threat to the efficacy of the RTI was the increasing pendency of appeals (over 20,000 as of July 2012). He said: “If current trends continue, according to my forecast for the central commission, in the next five years the pendency could be over 80-90,000 appeals and complaints. That will mean a three- to four-year wait at the commission. If that happens the average person is no longer going to be interested in RTI.”

The creation of two-member information benches will straightaway double the delays in the system, but if one were to add the fact that any party can then appeal against an information commission decision in the higher courts, we should add many more years.

Gandhi told Firstpost that the judiciary was already putting a spoke in the RTI wheel. He said: “A lot of progressive orders are getting stayed by the courts. And the way our courts function, a case can drag on for five-ten years very easily. If this trend continues - which is likely, because powerful government departments and those in power…will get a stay order from the courts - it will threaten the RTI.”

About the only saving grace in the Supreme Court judgment is that it cannot change the law on RTI. It has merely asked the government to change the law so that more judges can get into the information commission.

Given the government’s own wariness about RTI – everybody, from the PM down to the Law Minister has spoken against the intrusive nature of the RTI – one wonders if it will move with alacrity to change the law and ensure that the Act gets buried. A government which believes in empowerment should ask the Supreme Court to rethink its judgment.

The best option is for citizens and RTI activists to approach the Supreme Court directly and seek a larger bench to reconsider the verdict of the two-judge bench as save the RTI Act.

The enemies of RTI would like nothing more than to see the RTI killed by a Supreme Court order.

Updated Date: Sep 18, 2012 15:36:23 IST