Business
Standard: Sunday, October 07, 2012.
If
information is power, the Right to Information Act, 2005 promised to
permanently alter the power equation in favour of the common man by ensuring
that the right to information vested in the common man and not the bureaucrat.
Given the “transparency revolution” ushered in by the RTI Act, it was little or
no surprise that the powers that be began a counter-revolution to tame the
revolution.
The preferred
tool of the counter revolution was to exercise influence over the final
gatekeepers of information the Information Commissioners (ICs) at the Central
(CIC) and State Information Commissions (SIC) who would decide appeals against
the decision of the Central Public Information Officers of the state. The
manner in which this influence was achieved was by appointing retired
bureaucrats to these ICs, especially Chief Secretaries of state governments,
who were virtually assured the post of Chief Information Commissioners (ChIC)
at the state level. Of the current information commissioners on the CIC, three
are retired IAS Officers, two are retired IPS officers, one was the former
media advisor to the PM, one was a former official with the UN and the last was
formerly a government banker.
Predictably,
as is the case these days, a “public-spirited” person filed a PIL before the
Supreme Court (SC) which, probably for the first time, delivered a record
107-page judgment in less than two months.
While
refraining from striking down the offending provisions of the RTI Act, namely
the provisions pertaining to the qualification and appointment process of ICs,
the SC has instead preferred to give these provisions a disturbing and
convoluted interpretation, where it has “read down” the offending provision to
give itself carte blanche to amend not only the process of appointment but also
the manner in which the commissions work.
However, most
importantly, the SC has deemed all ICs to be judicial tribunals, thereby
qualifying them for the umbrella of “judicial independence”.
Given the
fact that these commissions were adjudicating some of the most critical
information disputes between the government and its citizens, the SC decided
that the Constitution of India and precedents of the SC required that
Information Commissions be deemed to be judicial tribunals that required their
independence protected from the government in order to ensure that they
functioned in an impartial manner.
Bureaucrats,
especially retired chief secretaries, have an immense conflict of interest in
adjudicating RTI disputes, since the information in question often pertains to
decisions that they have taken or overseen, or more likely, the decisions by a
brother or sister officer in the civil services. It is this principle of
“judicial independence” which has ensured a bold, some may say too bold,
judiciary which has protected the rights of citizens.
The SC’s
solution to this issue was quite predictable and in line with past precedents:
it required that all appointments be made ‘in consultation’ with the judiciary.
This basically means that the president or governor has to take the opinion of
the Chief Justices of the Supreme Court or the High Courts before making final
appointments. The second safeguard inserted by the SC is its holding that all
Information Commissions have to be headed by either sitting or retired judges
of the Supreme Court (for the CIC) or the High Court (for the SIC). Going a
step further, the SC also requires that all hearings by these commissions be
conducted by a bench of two members one being a judicial member (i.e., a
retired judge or a lawyer with 20 years of experience) and the other being a
member having qualifications in the remaining categories of Section 12(5) of
the RTI Act, which is as follows: “persons of eminence in public life with wide
knowledge and experience in law, science and technology, social service, management,
journalism, mass media or administration and governance.”
This is where
the judgment is inconsistent. If these commissions are judicial bodies, then
what is the logic of allowing anybody but judges or qualified lawyers to be
appointed as commissioners? What do vague terms like “social service” and
“management” even mean in this context? Further, what skills does a journalist
or a scientist have to interpret a statute like the RTI, which decides not only
the privacy rights of citizens but also the privileges of Parliament and state
legislatures?
If the
Information Commissions have been deemed to be “judicial tribunals”, then it
follows that only advocates, qualified under the Advocates Act, 1961 can
practise before these tribunals (save of course for cases of personal
representation, where RTI applicants themselves appear before the Commission).
Logically, the qualifications of the Commissioner should have a rational nexus
to the qualification of the persons who are practised to appear before a judicial
tribunal. In other words, it makes no sense for a person who is not qualified
to practise before a tribunal to be appointed as a judge or commissioner to the
tribunal in question.
The “equal
protection” clause of Article 14 of the Constitution allows Parliament to
create special classes of persons who may be treated differently. In this
instance Parliament is allowed to create a special class of persons who can be
appointed as judges or commissioners. However, while creating such
classification, the Parliament is required to not only ensure that such
classification is clear and intelligible but further, that such classification
bears a rational nexus to the objective of such classification.
In the
present case, the classification is anything but clear and intelligible. By the
SC’s own admission (in paragraph 48) the terms “social service”, “mass media”
and “administration & governance” does create “some doubt”. But more
importantly, do any of these skill-sets bear any rational nexus to the intent
of the legislation which is to decide disputes between the state and citizens
on the scope of information which can be disclosed? What are the skills
required to decide these disputes? The same as any other dispute involving any
other legislation a working knowledge of the law. In other words, deciding a
RTI dispute is purely a question of the law. Who are the only professionals
allowed to practise law? Advocates under the Advocates Act, 1961!
In other
words, the inclusion of categories of persons from any background other than
law bears no rational nexus to the ultimate objective of such classification which
is to create a tribunal that can hear and adjudicate arguments advanced by
qualified advocates. In other words, the SC should have held that it is unconstitutional
for any person, other than an advocate, to be appointed as a commissioner to a
tribunal. There was no need to mandate the creation of tribunals manned by a
combination of lawyers and persons from other backgrounds who have no
understanding or experience of the law.
In fact, the
SC is scheduled to hear exactly this argument made in a PIL filed by the Madras
Bar Association (MBA) challenging the appointment of bureaucrats to several
tribunals such as the Competition Commission of India, SAT, TDSAT, COMPACT, CAT
and coincidentally even the CIC.
--------------------------------------------------------------------------------
The
writer is at Stanford Law School
.JPG)
.JPG)
