The recent order of the division bench of the Supreme Court has cooked the goose of the Right to Information (RTI) world. Using a PIL as its plank, the apex court has pronounced that the Information Commission is a “‘judicial tribunal’ performing functions of ‘judicial’ as well as ‘quasi-judicial’ nature and having the trappings of a court”. It has directed that persons possessing a legal background must henceforward be one among two members on every information commission’s bench. More importantly, only a person who has been a judge of the Supreme Court should head the Central Information Commission (CIC) and likewise, the state information commissions should be headed by the former chief justice of a high court.
RTI activists are baffled. The general perception is that appeals and complaints over the last seven years does not show evidence of mishandling that merits such an extreme response. The Central Information Commission gets around 2,500 complaints and appeals every month and disposes of around 1,900 cases — leaving a backlog that gets accumulated. This is, basically, attributable to the paucity of commissioners, not to incompetence. Surprisingly, a study of the Manupatra database of high court judgments has shown that in the early years of the RTI, barely five to six cases relating to RTI disputes were decided by the high courts. This number increased to 30-40 in the subsequent three years and has now grown to around 60-70 cases a year from all the information commissions across the country. Appeals to the high court, therefore, account for a very small proportion of cases disposed of by the Central and state information commissions and this begs the question of whether such high-level judicial acumen is required at all.
More pertinent is the fact that most RTI-related forays to the high courts are almost entirely filed by the public authorities that do not wish to part with information; or they emerge from private entities who dispute their being covered by the Act. Not many members of the public, with exceptions such as the ubiquitous petitioner, Subhash Chandra Agrawal, have been venturing to the high court — a fact that should have settled misgivings about the miscarriage of justice. Finally, there is the question raised by NGOs about how the appellate authorities can muster so many judges and people with a “legal-cum-social background”, particularly when it comes to the district machinery, not to speak of panchayats, which are also public authorities under the RTI dispensation. Yet another concern expressed by RTI activists is whether the apex court’s order may not result in circumventing the present independence of the CIC, who has asked for the assets of the judges to be made public — something that has gone into appeal and has not been disposed of for a long time.
Admittedly, there is a flip side to the handling of RTI which merits mention. Some information commissioners do not know the meaning of “speaking orders”, in the absence of which certain orders may sound subjective and arbitrary. Second, information commissioners have been known to remand cases back even when they possess every authority, as well as a duty, to dispose of matters when citizens complain. Information commissioners, therefore, do need both knowledge and experience in interpreting the provisions of the law.
More than any other law, the RTI has been used by very ordinary citizens to access information — mostly unassisted by lawyers or daunting court procedures. Its success has been its user-friendliness and the simplicity with which matters can be disposed of. It is worrying that a law that was working perfectly well for the most part and which had empowered so many people in such a short span of time may become embroiled in controversy. At the end of the day, citizens might see the effect of this order snatching away an amazingly simple opportunity to get justice. If the result is that a simple strategy gets waylaid by the rigmarole of filling new positions, accompanied by a cumbersome judicial process, the results may not justify the solution. Whoever wins or loses, the citizen will pay the price.