Indian Government Appeals Controversial Court Ruling

12 October 2012

The Indian government has appealed a controversial Supreme Court ruling that that has roiled Indian information commissions by mandating more involvement of trained judges in the process.

The announcement came Oct. 11, preceding an Oct. 12 speech by Prime Minister Manmohan Singh on the seventh anniversary of the RTI act at seventh Convention of Central Information Commissioners.

Singh in his comments (full text) briefly noted the appeal , but focused more on his concerns about the law.  He expressed concern about frivolous and vexatious use of RTI Act and opposed extension of the law to public-private partnerships,

Chief Information Commissioner Satyananda Mishra, speaking at the same forum, warned that excessive “judicialisation” of information commissions would damage their functioning.

Singh States Concerns

The prime minister’s comments reflected his previously stated reservations about RTI. He also spoke about needing to protect individual privacy. “There are concerns about frivolous and vexatious use of the Act in demanding information disclosure of which cannot possibly serve any public purpose,” he said.

Singh said blanket extension of the RTI Act to public-private partnerships might discourage private sector involvement. He also said that a blanket exclusion on the other hand may harm the cause of accountability of public officials.

More generally, he said: “Rights cannot stand in isolation and must always be accompanied by reciprocal obligation… I believe that all of us share a responsibility to promote more constructive and productive use of the Right to Information Act. This important legislation should not only be about criticising, ridiculing and running down public authorities.”

 “I believe that the right to information can be utilised for even better results to the benefit of our country and the people. It needs to be remembered that the ultimate goal of the legislation is to induce more efficiency in the work of the government and help it serve the people better,” he said.

His remarks were widely reported, including in the Hindu and the Business Standard.

Mishra was quoted as saying: “Openness of approach, informality in style and simplicity of systems have characterised the functioning of all the commissions….Excessive judicialisation of information commissions will deprive the commission of this flexibility. The society must decide if this is the right path,” he said.

Appeal Sought

The appeal said the Sept. 13 ruling (See previous report) violates the RTI Act and the settled principle that the court could not direct the legislature to amend the law, the RTI Act, except where the law was silent on a particular subject.
“That is not the case here. Section 12(5) and 15(5) of the Act clearly lays down the norms relating to the qualification of chief information commissioner and information commissioners at the Centre and the state level respectively. Various directions given by the Supreme Court in paragraph 106 of the judgment are contrary to the provisions of the RTI Act,” the review petition prepared by advocate Anoopam N Prasad said, according to a report in the Times of India.

“The directions issued by the Supreme Court in paragraph 106 of the judgment are directly in teeth of certain provisions of the RTI Act, 2005, thus rendering the smooth functioning of the Act unworkable,” the appeal said.

The court said, “The chief information commissioner at the Centre or state level shall only be a person who is or has been a chief justice of the high court or a judge of the Supreme Court of India.” It also directed that “appointment of judicial members to any of these posts shall be made ‘in consultation’ with the Chief Justice of India and chief justices of the high courts of the respective states, as the case may be.”

Objecting, the appeal says, “No educational qualification has been prescribed for the officer performing the role of PIO. The rule of law requires the authorities under the Act to take decisions in a just and judicious manner.”

“The functions of PIO, first appellate authority and the commissions are not of judicial nature, and the requirement is of knowledge regarding administrative working. None of the officers is required to possess a legal background. The decision whether to disclose the information sought under RTI Act is not judicial in the least and is taken according to the provisions of the Act,” it added.

Activists Urge Reconsideration

Some 400 RTI activists from 16 states met Oct. 11 and passed resolutions urging reconsideration of the Supreme Court judgment, which they said “fails” to deal with several important aspects of implementation of the Act, according to media reports such in Deccan Herald and the Hindu.

The National Campaign for People’s Right to Information which organized the public hearing in collaboration with other civil society groups.

The judgment would increase the backlog of pending cases, the RTI activists said, undermining the act.

Former Central Information Commissioner, Shailesh Gandhi said. “Today, if five Information Commissioners are able to dispose of 15,000 cases every year, the present judgment of the Supreme Court will reduce the disposal rate to less than 25 per cent of current capacity.”

A resolution stated: “Therefore, we urge a review of the SC judgment at different levels — at the level of the government and Parliament, at the level of the court itself through a review petition and through widespread discussions across the country, keeping in mind the potential and actual impact of this judgment on the functioning of Information Commissions in India.”

The court should “immediately clarify whether the existing Commissions can continue to function and dispose appeals and complaints as per the RTI Act.”

The activists also said that information commissions themselves need to improve their transparency, such as by providing better access to orders.

Central Information Commissioner Deepak Sandhu said she will meet in December with state commissions.

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