The Tribune: Comments: Monday,
13 January 2025.
Much remains to be done by the Supreme Court to ensure effectiveness of the Act
THE Supreme Court’s recent
ruling on the Right to Information (RTI) Act has invited widespread comment and
much appreciation from activists. “An institution has been created,” said
Justice Surya Kant; he then pointedly asked Additional Solicitor General Brijender
Chahar, appearing for the Union of India, “What is the use of this institution
if you do not have persons to perform the duties under the law?”
The Bench asked the government why only people from a specific background (bureaucracy) were the favoured few to be appointed information commissioners. “We can take judicial notice of how many people from different walks have been appointed… The entire Commission is overloaded with one set of candidates,” was Justice Kant’s telling comment.
Advocate Prashant Bhushan, appearing for RTI activist Anjali Bhardwaj, had pleaded, “There has been only regression and not progress after the court’s intervention. They are killing the RTI because nobody is interested in giving information. So, the best way to kill the law is to render the information commissions defunct.”
The intervention in question was the decision on a writ petition (civil) of 2019, of which the present ruling is a follow-up. Justice AK Sikri, a judge with high sensitivity to the nuances of the RTI Act, had referred to a report published in March 2018, titled, ‘Report Card on the Performance of Information Commissions in India’. It found that eight information commissions had a waiting time of more than one year for an appeal or complaint to be heard, which was calculated on the basis of the number of appeals and complaints pending as on October 31, 2017, as against the monthly disposal rate. By not filling vacancies in information commissions in a timely manner, the Central and state governments are, in his view, frustrating the very purpose of the RTI Act as receiving information in a time-bound manner is the ‘very essence’ of the law.
The judgment directed in Conclusion (v): “We would also like to impress upon the respondents to fill vacancies, in future, without any delay. For this purpose, it would be apposite that the process for filling of a particular vacancy is initiated one to two months before the date on which the vacancy is likely to occur so that there is not much time lag between the occurrence of vacancy and filling up of the said vacancy.”
The ruling added: “We would like to place on record that aforesaid directions are given keeping in view the salient purpose which the RTI Act is supposed to serve. This Act is enacted not only to subserve and ensure freedom of speech. On proper implementation, it has the potential to bring about good governance, which is an integral part of any vibrant democracy. Attaining good governance is also one of the visions of the Constitution.”
Thus that writ petition was disposed. That order, followed as it is by Justice Kant’s enforcement order, no doubt merits appreciation by the public, to whom the right to freedom of speech belongs under Article 19(1)(a) of the Constitution, and therefore, ownership of the right to any information held by its server, which is the government that it elects.
Yet, in so lauding the judgment, it is well to remember that the apex court has much to answer for in enfeebling the exercise of this right by the citizenry, having gone so far as to exceed its own brief, which is limited, by actually amending the Act.
Former Information Commissioner Shailesh Gandhi, who served with me in the Central Information Commission (CIC) that I chaired and is now a leading RTI activist, lamented in a recent article in The Leaflet that “our right to information is being transformed into a right to deny information before our very eyes”.
After quoting from the Supreme Court ruling in P Ramachandra Rao vs State of Karnataka (2002), which lays down the limits of any court’s jurisdiction in ruling on any law as, “Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon the field of legislation properly meant for the legislature”, Gandhi cites the court’s decision of 2012, unremedied thus far, in Girish Deshpande vs Central Information Commission & Others.
Relying on the clause to protect privacy under Section 8(1)(j) of the Act, the judge went on to give licence to refuse most information at will to public information officers, first appellate authorities, information commissioners and courts. This ruling can and indeed has too often been used to deny information for which the Act mandates suo motu disclosure under Section 4.
The Supreme Court gave no reasoning for this unequivocal conclusion, but merely stated that the information sought was ‘personal’ and need not be given unless a larger public interest could be demonstrated. It chose to ignore whether the information sought stemmed from a public activity or whether or not its disclosure would amount to an unwarranted invasion of the privacy of the individual, which are provisions enunciated in the Act and have been elucidated repeatedly by rulings of the CIC and the courts.
It is necessary to consider the areas in which reasonable restrictions can be placed on the RTI while denying information on the grounds of privacy. These are defined in Article 19(2) of the Constitution and can be encapsulated in two words: ‘decency’ and ‘morality’. Transgression of either would amount to an invasion of privacy. Yet, Justices KS Radhakrishnan and Dipak Misra have given short shrift to these limits and constricted the Act itself in a judgment repeatedly taken recourse to by those in authority seeking to deny disclosure.
And so, while we might heave a sigh of relief at the stand taken to uphold the spirit of our Constitution by the SC, we should urge the revered institution that much remains to be done not only to make the instruments of enforcement Central and state information commissions useful but also to ensure the effectiveness of the law to uphold what has been described by the court as a constitutional right.
Much remains to be done by the Supreme Court to ensure effectiveness of the Act
The Bench asked the government why only people from a specific background (bureaucracy) were the favoured few to be appointed information commissioners. “We can take judicial notice of how many people from different walks have been appointed… The entire Commission is overloaded with one set of candidates,” was Justice Kant’s telling comment.
Advocate Prashant Bhushan, appearing for RTI activist Anjali Bhardwaj, had pleaded, “There has been only regression and not progress after the court’s intervention. They are killing the RTI because nobody is interested in giving information. So, the best way to kill the law is to render the information commissions defunct.”
The intervention in question was the decision on a writ petition (civil) of 2019, of which the present ruling is a follow-up. Justice AK Sikri, a judge with high sensitivity to the nuances of the RTI Act, had referred to a report published in March 2018, titled, ‘Report Card on the Performance of Information Commissions in India’. It found that eight information commissions had a waiting time of more than one year for an appeal or complaint to be heard, which was calculated on the basis of the number of appeals and complaints pending as on October 31, 2017, as against the monthly disposal rate. By not filling vacancies in information commissions in a timely manner, the Central and state governments are, in his view, frustrating the very purpose of the RTI Act as receiving information in a time-bound manner is the ‘very essence’ of the law.
The judgment directed in Conclusion (v): “We would also like to impress upon the respondents to fill vacancies, in future, without any delay. For this purpose, it would be apposite that the process for filling of a particular vacancy is initiated one to two months before the date on which the vacancy is likely to occur so that there is not much time lag between the occurrence of vacancy and filling up of the said vacancy.”
The ruling added: “We would like to place on record that aforesaid directions are given keeping in view the salient purpose which the RTI Act is supposed to serve. This Act is enacted not only to subserve and ensure freedom of speech. On proper implementation, it has the potential to bring about good governance, which is an integral part of any vibrant democracy. Attaining good governance is also one of the visions of the Constitution.”
Thus that writ petition was disposed. That order, followed as it is by Justice Kant’s enforcement order, no doubt merits appreciation by the public, to whom the right to freedom of speech belongs under Article 19(1)(a) of the Constitution, and therefore, ownership of the right to any information held by its server, which is the government that it elects.
Yet, in so lauding the judgment, it is well to remember that the apex court has much to answer for in enfeebling the exercise of this right by the citizenry, having gone so far as to exceed its own brief, which is limited, by actually amending the Act.
Former Information Commissioner Shailesh Gandhi, who served with me in the Central Information Commission (CIC) that I chaired and is now a leading RTI activist, lamented in a recent article in The Leaflet that “our right to information is being transformed into a right to deny information before our very eyes”.
After quoting from the Supreme Court ruling in P Ramachandra Rao vs State of Karnataka (2002), which lays down the limits of any court’s jurisdiction in ruling on any law as, “Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon the field of legislation properly meant for the legislature”, Gandhi cites the court’s decision of 2012, unremedied thus far, in Girish Deshpande vs Central Information Commission & Others.
Relying on the clause to protect privacy under Section 8(1)(j) of the Act, the judge went on to give licence to refuse most information at will to public information officers, first appellate authorities, information commissioners and courts. This ruling can and indeed has too often been used to deny information for which the Act mandates suo motu disclosure under Section 4.
The Supreme Court gave no reasoning for this unequivocal conclusion, but merely stated that the information sought was ‘personal’ and need not be given unless a larger public interest could be demonstrated. It chose to ignore whether the information sought stemmed from a public activity or whether or not its disclosure would amount to an unwarranted invasion of the privacy of the individual, which are provisions enunciated in the Act and have been elucidated repeatedly by rulings of the CIC and the courts.
It is necessary to consider the areas in which reasonable restrictions can be placed on the RTI while denying information on the grounds of privacy. These are defined in Article 19(2) of the Constitution and can be encapsulated in two words: ‘decency’ and ‘morality’. Transgression of either would amount to an invasion of privacy. Yet, Justices KS Radhakrishnan and Dipak Misra have given short shrift to these limits and constricted the Act itself in a judgment repeatedly taken recourse to by those in authority seeking to deny disclosure.
And so, while we might heave a sigh of relief at the stand taken to uphold the spirit of our Constitution by the SC, we should urge the revered institution that much remains to be done not only to make the instruments of enforcement Central and state information commissions useful but also to ensure the effectiveness of the law to uphold what has been described by the court as a constitutional right.
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