Governance Now: New Delhi:
Sunday, April 17, 2013.
By Jagdeep Chokkar
Chhokar
is a former professor, dean, and director in-charge of IIM, Ahmedabad, and is
associated with the Association for Democratic Reforms and the Aajeevika
Bureau.
While folks
working with the right to information (RTI) were still reeling from the supreme
court judgment on the appointment of information commissioners in the Namit
Sharma case, came the prime minister’s speech on the seventh year celebrations
of the RTI Act on October 12, again raising the sceptre of “frivolous and
vexatious” use of the law. The RTI Act now seems to be suffering from what
might be called a double whammy, first the judiciary and now the
bureaucracy-politics nexus!
Judicial
Attack;
When you file
an RTI query, you are seeking information. Is that similar to seeking justice?
You ask, for example, about the amount spent on the rual job gaurantee scheme
in a district. That information may lead to justice by fixing wrongs, if any.
But that comes later.
Our lawmakers
drafted the RTI Act to empower every citizen, and to that aim, they kept the
whole process as simple as possible – unlike courts. Now the supreme court has
converted information commissions into judicial tribunals.
The Namit
Sharma petition seems to have been specifically drafted to convert the
information commissions into any other, regular judicial tribunal. The first
three “prayers” in the petition are given below. The others were of an interim
nature.
Prayers;
It is
therefore, most respectfully prayed that this Hon’ble Court may graciously be
pleased to:
a)
issue
a writ in the nature of mandamus or any other appropriate writ, order or
direction, declaring sub sections 5 & 6 of Section 12 & Sub Sections 5
& 6 of Section 15 of the Right to Information Act, 2005 as ultra vires the
Constitution of India being violative of Articles 14,16, 19(i)(g) & 50 of
the Constitution of India; and
b)
issue
a writ in the nature of mandamus or any other appropriate writ, order or
direction directing the Respondent to amend the Right to Information Act, 2005
in consonance with the directions of this Hon’ble Court and /or the ratio laid
down in Union of India Vs. Madras Bar Association, (2010) 11 SCC 1; Pareena
Swarup Vs. Union of India (2008) 14 SCC 107; L. Chandra Kumar Vs. Union of
India, (1997) 3 SCC 261; R.K. Jain Vs. Union of India (1993) 4 SCC 119; S.P.
Sampath Kumar Vs. Union of India, (1987) 1 SCC 124; and
c)
issue
a writ in the nature of mandamus or any other appropriate writ, order or
direction directing respondent to incorporate there should a provision for
appointment of retired Judges of High Court or this Hon’ble Court as Chief
Information Commissioner, retired District Judges as State Information
Commissioners and mixed appointment of technical as well as Judges of the Bench
as Information Commissioners respectively.”
The court
appears to have been magnanimous in not declaring any of the sections or
sub-section of the RTI Act as unconstitutional but it has taken the
extraordinary step of changing the entire character and thrust of the RTI Act
by “reading into it” meanings that the legislature never intended. Let us take
the two impugned sections one at a time.
Almost half
of the judgment (Para 54 to Para 103) is devoted to the discussion under the
heading
If it’s justice,
you need judges on board;
The RTI Act
says information commission will have people with ‘knowledge and experience’.
What sort of knowledge and experience? If an information commission is
delivering justice, then of course it needs judges on board, laymen won’t do.
“Constitutional
Validity of Section 12(5)”. The operative part of Para 103 reads:
“103. The
above detailed analysis leads to an ad libitum conclusion that under the
provisions and scheme of the Act of 2005, the persons eligible for appointment
should be of public eminence, with knowledge and experience in the specified
fields and should preferably have a judicial background. They should possess
judicial acumen and experience to fairly and effectively deal with the
intricate questions of law that would come up for determination before the
Commission, in its day-to-day working. The Commission satisfies abecedarians of
a judicial tribunal which has the trappings of a court. It will serve the ends
of justice better, if the Information Commission was manned by persons of legal
expertise and with adequate experience in the field of adjudication. We may
further clarify that such judicial members could work individually or in
Benches of two, one being a judicial member while the other being a qualified
person from the specified fields to be called an expert member. Thus, in order
to satisfy the test of constitutionality, we will have to read into Section
12(5) of the Act that the expression ‘knowledge and experience’ includes basic
degree in that field and experience gained thereafter and secondly that legally
qualified, trained and experienced persons would better administer justice to
the people, particularly when they are expected to undertake an adjudicatory
process which involves critical legal questions and niceties of law. Such
appreciation and application of legal principles is a sine qua non to the
determinative functioning of the Commission as it can tilt the balance of
justice either way” (underlining added).
The
conclusion of the “detailed analysis” contained in the paragraph above, is
reflected in the final “order and directions” thus:
“106
(2). The provisions of Sections 12(5)
and 15(5) of the Act of 2005 are held to be constitutionally valid, but with
the rider that, to give it a meaningful and purposive interpretation, it is
necessary for the Court to ‘read into’ these provisions some aspects without
which these provisions are bound to offend the doctrine of equality. Thus, we
hold and declare that the expression ‘knowledge and experience’ appearing in
these provisions would mean and include a basic degree in the respective field
and the experience gained thereafter. Further, without any peradventure and
veritably, 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. This is the obvious
interpretation of the language of these provisions and, in fact, is the essence
thereof.”
The
underlined parts of summary of the “detailed analysis”, in Para 103 above are
problematic.
But that
was not the intention;
The idea
originally was to make information about the functioning of the government
available to people as simply as possible. In fact, the precursor to the RTI
Act specifically identified “the existing legal framework” as one of the
“several bottlenecks” in the “free flow of information for citizens and
non-Government institutions”.
It must be
said, with due respect to the hon’ble supreme court, that its conclusion that
“The Commission satisfies abecedarians of a judicial tribunal which has the
trappings of a court,” is erroneous. This conclusion seems to reflect a
somewhat different understanding of the entire purpose of the RTI Act than what
is stated in the preamble of the Act itself which is reproduced below:
“An Act to
provide for setting out the practical regime of right to information for citizens
to secure access to information under the control of public authorities, in
order to promote transparency and accountability in the working of every public
authority, the constitution of a Central Information Commission and State
Information Commissions and for matters connected therewith or incidental
thereto. WHEREAS the Constitution of India has established democratic Republic;
AND WHEREAS democracy requires an informed citizenry and transparency of
information which are vital to its functioning and also to contain corruption
and to hold Governments and their instrumentalities accountable to the
governed; AND WHEREAS revelation of information in actual practice is likely to
conflict with other public interests including efficient operations of the Governments,
optimum use of limited fiscal resources and the preservation of confidentiality
of sensitive information; AND WHEREAS it is necessary to harmonise these
conflicting interests while preserving the paramountcy of democratic ideal; Now. THEREFORE, it is expedient to provide
for furnishing certain information to citizens who desire to have it.”
It is
interesting the supreme court did take note of the “Objects and Reasons” for
the enactment of the ‘Freedom of Information Act, 2002’, the predecessor of the
RTI Act of 2005, which it summarised in the judgment as follows:
“27. In terms
of the Statement of Objects and Reasons of the Act of 2002, it was stated that
this law was enacted in order to make the Government more transparent and
accountable to the public. It was felt that in the present democratic
framework, free flow of information for citizens and non-Government
institutions suffers from several bottlenecks including the existing legal
framework, lack of infrastructure at the grass root level and an attitude of
secrecy within the Civil Services as a result of the old framework of rules.
The Act was to deal with all such aspects. The purpose and object was to make
the government more transparent and accountable to the public and to provide freedom
to every citizen to secure access to information under the control of public
authorities, consistent with public interest, in order to promote openness,
transparency and accountability in administration and in relation to matters
connected therewith or incidental thereto”.
From a simple
and plain reading of the above, the preamble of the RTI Act of 2005, and the
Statement of Objects and Reasons of the Freedom of Information Act of 2002, it
will be clear that the essential purpose of these the two legislations was, and
still is, to make information about the functioning of the Government available
to citizens as simply as possible, without any impediments whatsoever. It is
worth noting that the “Statement of Objects and Reasons of the Freedom of Information
Act of 2002” specifically identified “the existing legal framework” as one of
the “several bottlenecks” in the “free flow of information for citizens and
non-Government institutions”.
By treating
the information commissions as a “judicial tribunal”, and that too with “the
trappings of a court”, the supreme court appears to have gone against the very
spirit of the RTI Act.
The court
further says that the information commission “will serve the ends of justice
better, if (it) was manned by persons of legal expertise and with adequate
experience in the field of adjudication”. While it is obviously beyond question
that every law is meant to “serve the ends of justice” in the final analysis,
but it seems worth remembering that the RTI Act is meant to serve an
intermediate goal, of providing information to citizens, which, in turn, will
assist them in seeking the final goal, of justice. Without having access to
appropriate information, a citizen will be in a state of ‘ignorant bliss’
without having any idea of what justice is she being denied.
The RTI Act
was enacted precisely because citizens found it impossible to get justice in
“the existing legal framework” through the normal courts with all their
“trappings”, so that citizens could get information on what they were being
denied, without “the trappings of a court” and then take steps to get justice.
The above
discussion will also show that the court’s observations about “administer(ing)
justice to the people”, answering “critical legal questions”, observing
“niceties of law”, “application of legal
principles”, and “tilt(ing) the balance of justice”, are not applicable to the information
commissions in the same way as they are to what might be called regular and
usual “judicial tribunals”. The assumption of the supreme court that all or
most of the appeals and complaints before the info commissions involve legal
questions is negated by the observation of former information commissioner
Shailesh Gandhi, who worked in that capacity for five years, that “85% percent
of the cases need no legal interpretation”.
Judicial
/administrative tribunals and information commissions;
The supreme
court relies on several previous judgments to conclude that information
commissions are like judicial or administrative tribunals – like central
administrative tribunal (CAT), for example. But the judgment cited refer to
those articles of the consititution with which the RTI Act has little to do.
Another
disturbing issue is the determination of the court that the information
commissions are like judicial or administrative tribunals in their purpose and
functioning.
The petition
prayed for the issue of a direction to the Union of India “to amend the Right
to Information Act, 2005 in consonance with the directions of this Hon’ble
Court and /or the ratio laid down in Union of India Vs. Madras Bar Association,
(2010) 11 SCC 1; Pareena Swarup Vs. Union of India (2008) 14 SCC 107; L.
Chandra Kumar Vs. Union of India, (1997) 3 SCC 261; R.K. Jain Vs. Union of
India (1993) 4 SCC 119; S.P. Sampath Kumar Vs. Union of India, (1987) 1 SCC
124”.
The most
relevant judgment out of the five referred to above is S.P. Sampath Kumar etc.
vs Union of India & Ors delivered on December 9, 1986. That particular
judgment repeatedly makes it clear that the ‘tribunals’ that are being referred
to have been created either in “substitution” of the high court or are intended
to “supplant” the high court. The following three excerpts from the judgment
should prove this beyond doubt.
“What is
needed in a judicial tribunal which is intended to supplant the High Court…”
“Since the
Administrative Tribunal has been created in substitution of the High Court…”
“It may be
noted that since the Administrative Tribunal has been created in substitution
of the High Court…”
No one should
be in doubt that the information commissions are not, and never were, intended
to either substitute for any court of law or to supplant it. Therefore, the
judgments cited in the Namit Sharma petition actually are not relevant to the
RTI Act or the information commissions at all. The hon’ble supreme court in its
wisdom has decided to rely on these judgments for reasons which remain
unfathomable.
The latest
judgment referred to is Union of India Vs. Madras Bar Association, (2010), the
concluding para of which reads as follows:
“We therefore
find that these petitions relating to the validity of the NTT [National Tax
Tribunal] Act and the challenge to Article 323B raise issues which did not
arise in the two civil appeals. Therefore these cases cannot be disposed of in
terms of the decision in the civil appeals but requires to be heard separately.
We accordingly direct that these matters be delinked and listed separately for
hearing.”
The opening
paragraph of the judgment is very informative:
“In all these
petitions, the constitutional validity of the National Tax Tribunal Act, 2005
(‘Act’ for short) is challenged. In TC No.150/2006, additionally there is a
challenge to section 46 of the Constitution (Forty-second Amendment) Act, 1976
and Article 323B of Constitution of India. It is contended that section 46 of
the Constitution (Forty-second Amendment) Act, is ultra vires the basic
structure of the Constitution as it enables proliferation of Tribunal system
and makes serious inroads into the independence of the judiciary by providing a
parallel system of administration of justice, in which the executive has
retained extensive control over matters such as appointment, jurisdiction,
procedure etc. It is contended that Article 323B violates the basic structure
of the Constitution as it completely takes away the jurisdiction of the High
Courts and vests them in the National Tax Tribunal, including trial of offences
and adjudication of pure questions of law, which have always been in the
exclusive domain of the judiciary.”
It is clear
from the above that the Madras Bar Association case, as in fact all other cases
referred to in the petition, and on which the supreme court appears to have
relied, are about tribunals set up under Articles 323A and 323B of the
Constitution.
Since the RTI
Act has no nexus with Articles 323A and 323B, and therefore is not intended to
supplant or substitute any court of law, all these judgments cannot provide any
guidance about how the information commissions should function.
Of course,
the judgment repeatedly mentions that the information commission is a
quasi-judicial body but then ends up directing that it should function in
court-like manner. What perhaps has been missed is that it is not necessary to
be trained in law to be judicious. One does not have to be ‘judicial’ to be
‘judicious’.
Dictionary
meanings of judicious are (1) using or showing judgment as to action or
practical expediency; discreet, prudent, or politic: judicious use of one’s
money; and (2) having, exercising, or characterized by good or discriminating
judgment; wise, sensible, or well-advised: a judicious selection of documents.
Given the
overall purpose and tenor of the RTI Act, it is this kind of judicious mind
that is needed to function effectively as an information commissioner, and not
necessarily one having a formal degree in law. Such a “judicious” person will
be perfectly capable of appreciating and applying legal principles, which is
listed as one of the requirements by the court in Para 103 of the judgment.
“Reading
into” and “reading down”;
A brief
introduction to a branch of knowledge called ‘Interpretation of Statutes” shows
that when a legislature drafts a law, every word in it is presumed to be
intentional and carrying only the normal meaning.
A portion of
Para 103 of the judgment, which deals with Section 12(5) of the RTI Act, reads
as follows:
“Thus, in
order to satisfy the test of constitutionality, we will have to read into
Section 12(5) of the Act that the expression ‘knowledge and experience’
includes basic degree in that field and experience gained thereafter and
secondly that legally qualified, trained and experienced persons would better
administer justice to the people, particularly when they are expected to
undertake an adjudicatory process which involves critical legal questions and
niceties of law” (emphasis added) (Para 103).
.JPG)
.JPG)
