Sunday, October 28, 2012

SC judgement on RTI Act

The Supreme Court judgement in the Namit Sharma case involving the RTI Act has rightly caused concern in various quarters. The SC ruled that the Information Commission was "judicial tribunal" and hence all benches of the Commission must work with two members each, with one member having a judicial background and the other as an expert.

Former Chief Justice of the Delhi High Court A P Shah highlights the issues raised by the judgement of the honourable court:

First, equating the information commissions with a "judicial tribunal" is clearly erroneous. The only issue to be decided before the commission is whether information, which is already available with the autho-rities, should be disclosed or not. The commission does not therefore dispense justice (like a court), it merely deals with disclosure of information.

Second, the Act already provides certain qualifications for appointments to the post of information commissioners ("persons of eminence" and "knowledge and experience" in particular fields). However, the court has completely rewritten the provisions of the Act by insisting on qualifications that go beyond what has been prescribed by the Act, and further, by specifically laying down the requirement of two-person benches, having at least one judicial member. This is a clear case of judicial overreach where the court has virtually legislated provisions of law.

More importantly, there are important practical concerns that flow from this judgment, and which the court has unfortunately glossed over. A huge fallout by way of immediate effect of this judgment would be the cessation of the activities of all the information commissions until members with judicial background are appointed. The position of the current incumbents to the post of CICs becomes precarious as they cannot continue to work as per the SC decision. It is completely unclear whether they would resign or be removed — and if so, under what provision?

The RTI Act is one of the biggest triumphs of Indian democracy, an instrument of empowerment that does more for accountability of government than most other measures in that direction. It is, perhaps, a more valuable tool for fighting corruption than the proposed Lok Pal. It is important that nothing comes in the way of the working of this majestic Act. The government has been quick to move a review petition before the SC and one hopes that the SC will provide suitable redress. 

7 comments:

Anonymous said...

I guess the RTI act is good in a country with low institutional capacity, transparency and systems in major transition. As well, as institutions where sense of accountability isn't clear.

However, in terms of efficiency, it seem to be a waste of resources. For example; if I want to know the expenses incurred by an MP, I would have to file an RTI and do so every year or two. And, it would have to be repeated for every MP, babu? Sounds awfully wasteful in terms of money and time.

Why not have the babus simply put up this information on a website on a quarterly basis? Someone should take the common requests, generalize it and institutionalize a process to share that information proactively and voluntarily, so that it doesn't require filing a RTI.

I know its asking too much, especially at the current point in time, but surely it feels wrong to have a law to make public officials reveal public information. Instead of the RTI act, why didn't we pass a law to make public information public, period? We have the second best solution. Sure, its a good thing, but not ideal...

T T Ram Mohan said...

The RTI Act, if I am not mistaken, does mention that a whole lot of information that can be placed in the public domain should be so placed; it should not be necessary for people to seek such information by filing an application. Unfortunately, few organisations are willing to honour the spirit of the RTI Act, not surprising since they are not willing to honour the letter either.

-TTR

chandramouli said...

Bizzare decision by SC

The recent decision of the Apex Court in the Namit Sharma case is bizzare and goes beyond the jurisdiction of the Court. Though Chapter V Section 18(3) of the RTI Act vests the same power as that of Civil Court, the information commissions are neither courts nor "judicial Tribunals". The Apex court cannot rule that the commissions must work with two members with qualification that the Apex Court imposes, for which it has no jurisdiction. The job of the courts is to interpret statutes and not to create statutes. In this case, the Apex court has clearly gone beyond its jurisdiction. I am sure the review will nullify the error done by the decision of the Apex Court.

chandramouli said...

Dear TTR,
You are right. Section 4 of the RTI act casts responsibility on public authority to place whole lot of information in the public domain.

chandramouli said...

Dear TTR,
You are right. Section 4 of the RTI act casts responsibility on public authority to place whole lot of information in the public domain.

Amy Lou said...

This is rare information, to me...about the judgement..any how thanks for sharing the information in your valuable time ...

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