Moneylife:
Pune: Thursday, October 11, 2012.
Moneylife
Foundation held a discussion with Shailesh Gandhi, former CIC and other
activists on the subject on Wednesday. RTI activists are appealing citizens to
discuss the judgment widely and request the Supreme Court to rescind it, since
it is likely to seriously impinge on the fundamental rights
Former
Central Information Commissioner (CIC) Shailesh Gandhi is leading a nationwide
campaign to make people aware of the perils of the recent Supreme Court
judgment on the appointment of Information Commissioners. The campaign, which
kick-started in Pune on Tuesday will take shape in Mumbai today, followed by
Hyderabad, Lucknow and Patna. Moneylife Foundation is holding a discussion with
Mr Gandhi and other activists on the subject later in the afternoon today.
Aseem Sarode,
human rights activist and lawyer who opened the session in Pune stated, “The
Constitution has given us the right to analyse, scrutinise and discuss a
Supreme Court judgment. In this capacity I am of the view that the judgment on
the appointment of Information Commissioners is more of a rehabilitation
programme for judges of the Supreme Court and high courts, with the sole
interest of their appointments, post-retirement, as information commissioners.”
Sarode’s
opinion was further bared by former CIC and RTI activist, Shailesh Gandhi, when
he added to Sarode’s view, stating that, “The judgment orders that all Chief
Information Commissioners must be retired chief justices of high courts or the
Supreme Court. It also stipulates that the Information Commission must give a
ruling 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 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.’’
Sarode
further pointed out that the petitioner’s contention that the appointment of
Information Commissioners is in violation of the fundamental right of equality
and freedom of expression as mentioned in Article 14, 16 and 19 (g) of the
Constitution of India, was ‘surprisingly’’ relied by the judges. This
interpretation says Sarode “is however misleading as the judgment does not
mention as to whose fundamental rights are being infringed upon.’’
Sarode also
mentioned that “the RTI Act is a fair and just law as it has provisions of
which information to give and which to reject.” Coming down heavily on the
legal acumen of judges, he stated that, “knowing law and having the capacity to
interpret it needs judicial sensitivity and judicial creativity which is
largely missing in the judicial fraternity. Hence, the judgment which mentions
about appointment of chief justices of high courts and the Supreme Court for
‘legal accuracy’ of CIC decisions is a very subjective term.”
Shailesh
Gandhi stated that, “The court has expressed opinion that it is an
unquestionable proposition of law that the Information Commission is a
‘judicial tribunal’ performing functions of ‘judicial’ as well as
‘quasi-judicial’ nature and having the trappings of a court. As a result of this opinion, henceforth only
legal experts would conduct the work of the Information Commission. But it
would lead to doing away with present simplicity in the work of the Information
Commission and instead there is every possibility of introduction of complexity
as in typical judicial processes and delay in justice. Also, it is possible
that common people would stay away from the RTI Act due to judicial complexity
and ultimately the activities of RTI would be concentrated in the hands of
‘judicial experts’. There is no need of an astrologer to tell what happens to
the common man when the ‘experts’ control a system.”
Senior
journalist, director of media and publicity division of YASHADA and member of
the Press Council of India (PCI), Rajeev Sabade argued that, “Press Council of
India is also a quasi-judicial body wherein 20 journalists are nominated. So,
does that mean that PCI is an illegal body? I feel that the bench has crossed
its limits and it is a great setback to the RTI movement. Some states have
stalled the functioning of their Information Commissions due to this SC order,
some are partially functioning and some are seeking advice of the advocate general
of the state. I also feel that the judgment is aimed at post-retirement plans
of judges.”
Sabade also
stated that “our country has the highest number of young people and they do not
fit into the position of an Information Commissioner if they are below 65 years
of age. This shows to what extent the judges have applied their mind. What is
most shocking is that no politician has raised the voice against this judgment.
The Parliament should make its stand clear.
Stating that
the Information Commission would turn into a “Senior Citizen’s Club”, Shailesh
Gandhi stated that “Until now, people from all walks of life had opposed any
amendment in the RTI Act, as it was believed that once there was an amendment,
the government would use the opportunity to make number of unfavourable
amendments against larger interest of the public. Now, the government has got a
green signal for the purpose as the Supreme Court has passed an order to amend
the law.”
He further
stated that: “In India many quasi-judicial bodies are in existence without
‘judicial members’. 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
Information Commission’s decisions for the period January to April 2012 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.”
As for the
global trend, Mr Gandhi stated that, “Internationally over 90 countries have
access to 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.”
Justice Dilip
Karnik who presided over the meeting stated that judicial appointment would in
fact improve the quality of CIC decisions and hence the judgment should be seen
objectively.
Mr Gandhi
concluded by warning that, “if people keep quiet, it will show that we are not
fit for democracy. Five years later, we will have to forget the RTI.”
Shailesh
Gandhi and RTI activist Vijay Kumbhar appealed to the citizens to create
awareness amongst their friends through meetings, emails and social media, make
online petitions. In short, do whatever is within your means to spread the word about the dangerous threat to
RTI.
In a press
note issued after the meeting they stated: “Citizens must discuss this
judgement and request the Supreme Court to rescind it, since it is likely to
seriously impinge on the fundamental right of citizens which citizens have
given to themselves thorough their representatives in Parliament. The solution
lies in getting a transparent process to select the Information Commissioners
and holding them accountable. This judgment may take us from a cesspool and
throw us head down, into a valley which would be sure death.”
(The
controversy has arisen due to the Supreme Court judgment in Namit Sharma Vs
Union of India in WP no. (C) 210 of 2012 on 13 September which may have a very
damaging impact on the RTI implementation)
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