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