Prof M Sridhar Acharyulu
The Madras High Court has hurled a serious satire against the functioning of Information Commissions in our country. In its landmark judgment on September 7, in a writ petition filed by Tamil Nadu Public Service Commission versus Tamil Nadu State Information Commission (TNSIC) & A. Muthian, the High Court, while upholding the TNSIC’s order of disclosing the information sought, commented: “This may be one of the rarest of rare cases where the Second Appellate Authority has boldly taken a decision, which does not warrant any interference by this Court, as there is no error apparent on the face of record.”
Second Appellate Authority under Right to Information Act, 2005, means the Information Commissions in States and Central Information Commission at Centre. The High Court by using expression ‘… the rarest cases where…has boldly taken a decision” has criticised the functioning of all Information Commissions and lamented that they are not frequently taking bold decisions. It’s a slap on absence of boldness and independence in giving orders in second appeals. The Act provided for second appeal from the failure of securing information from First Appellate authority, who is an internal officer senior to the PIO (Public Information Officer). While FAA is not independent authority, the RTI Act envisaged the CIC or SIC to be independent and give bold orders directing disclosure of information if the requested information is not exempted under Section 8 or 9 of Act.
In 2019, the Centre has diluted the office of the IC by reducing its authority, term and salary from originally prescribed status and made it just a body to which the Centre would appoint any person according to rules prescribed by the Centre from time to time. Practically it means when ever Centre wants it can change the term, status, and salary of the ICs, not only at Centre, but also states. Unfortunately, no state resisted the amendment, though it takes away the powers of State Governments and centralise the power in the Centre, which is against the federal principles of the Constitution of India.
Earlier, the Central Information Commissioner was equal to Election Commissioner, who is at par with Judge of the Supreme Court, with an unimpeachable term of 5 years, which can be removed only on proof of misconduct.
Now, the Commissioner will have three years of term and the status of a joint secretary. The NGOs and RTI activists were opposing the selection of former bureaucrats to 90 per cent of these positions and were demanding selection of eminent persons from different walks of life as prescribed under Section 12(5) and 15(5), which says ICs “shall be 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”. The Governments are picking up for the posts of Chief Information Commission at Centre and in most of the states, invariably the former bureaucrats and keeps important portfolios like PMO and CMOs with them only. This practice reduces the possibility of CIC or CSIC to give ‘bold’ decisions ordering disclosure to PMO and CMOs.
Plight of ICs
The Madras High Court sounded all this plight of ICs and lack of boldness in majority of their orders in the above paragraph. The HC was also very strong at the way the TN PSC refused to give information raising false apprehensions and found fault with the PIO for irresponsible and mechanical rejections of the information requests.
The Court suggested that Public Information Officers who resort to doing so “must be shown the door” for failing to act in terms of the RTI Act’s mandate, and further commented: “… in my view, they are unfit to hold the post of Public Information Officer or any post in connection with the discharge of duties under RTI Act, and they should be shown the doors”.
Justice S Vaidyanathan remarked, “Now-a-days, the Officials are used to adopt a tactic answer in mechanical manner that the information sought for is exempted in the light of Section 8(1)(d) of the Act, without actually ascertaining as to whether the information sought falls within the ambit of the said provision. Such Officers must be taught a lesson and in my view, they are unfit to hold the post of Public Information Officer or any other post in connection with the discharge of duties under RTI Act and they should be shown the doors, so that it will be a lesson for other Officers to act in accordance with the terms of the Act, failing which they may also face the similar or more consequences.”
There are two kinds of PIOs in public authorities of Centre and States. One- they have a closed mindset and invariably invoke Section 8 and quote some clause without substantiating or justifying their denial. Two- the Chief PIOs or PIOs or Assistant PIOs are under constant pressure from top authorities in public authorities, and it is difficult for them to disclose information which could embarrass their bosses.
Caste and privacy
When quotas are based on caste, which was accepted as a social group in identifying the backwardness, the rejection of information about persons selected as per their caste of backward class is invalid. The PIOs are consistently rejecting the requests wherever ‘caste’ is referred as ‘private’ information. This case is a classic example.
In this RTI enquiry made in 2008, Muthian had sought information concerning vacancies in the Tamil Nadu public services and the number of seats allocated to backward communities and most backward communities between 2006 and 2008 with details of caste wise selections.
The tragedy is that it took 12 years to get an order of disclosure. If the TNPSC choses to take this issue to the Supreme Court, Muthian may not get the information. The public authorities and their indifferent PIOs are frustrating the aims and objects of the transparency legislation.
Non-application of mind
In this case the Public Information Officer of PSC refused to divulge the information, claiming that the information is exempted under Section 8 (1)(d) of the RTI Act. However, on appeal, the second appellate authority, i.e. the Tamil Nadu Information Commission (TNIC) ordered that the information sought be provided free of cost.
The Tamil Nadu Public Service Commission (TNPSC) contended that the information sought for, if divulged, would infringe the privacy of individuals and create communal discontent and strife.
Disagreeing with this view, the High Court opined that the disclosure of the caste-wise breakup would benefit the candidates as it would help them ascertain whether they actually fall under the reservation quota or not.
In any case, it was pointed out, “When the general list itself has already been published for public view, as stated in the petition, there is nothing wrong in disclosing the details to the respondent.” The Court added that the TNPSC’s apprehension that an in-depth description of castes would create communal unrest is only an illusion. Justice Vaidyanathan further remarked, “… if it is the real concern of TNPSC and the Government, they should think of abolishing the quota system as well as removal of column regarding caste particulars in the school certificate itself, so that the people of Tamil Nadu could stand united under one roof irrespective of caste, creed, religion, etc. at least in the year 2050 and our State will be a model State for the whole of the country .”
Transparency does not undermine judicial freedom
Emphasising the significance of the Right to Information (RTI) Act, 2005, the court said: “… the provision of Section 6 confers the right to information to any person for the obvious reason that right to information flows from the right to expression… Even the Supreme Court clearly held that the office of Chief Justice will come under the purview of Right to Information (RTI), by observing that transparency does not undermine judicial freedom. “
The HC has referred the classic statement of the Supreme Court in the case of State of Uttar Pradesh v. Raj Narain and Others, saying, “… people of this country have a right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in all its hearing.“
It is highly significant to note that the Court directed the Tamil Nadu Government to issue a circular to its Departments warning of legal consequences that would follow if information is not divulged in line with the RTI Act. It said: “The Government is directed to circular this order to all its Departments, Public Sector Undertakings, Corporation, etc., so that the Authorities, more particularly under RTI Act, will come to know of the legal consequences of non-furnishing of the details, which the affected parties / General Public seek for.”
The Tamil Nadu State Information Commission has rightly directed the disclosure of the information sought for within a month’s time. The Commission and High Court have found that first authority had erroneously relied on Section 8(1)(d) of the RTI act to reject the RTI request. The Court observed; “… the purpose of enactment of RTI Act itself is to ensure transparency in all respects. Moreover, a reading of the said section shows that it relates to commercial confidence, trade secretes, etc., and it does not strictly prohibit the authority concerned from providing such details, as divulging of caste details will surely be beneficial to candidates to doubly ascertain either about their induction or rejection and as such.”
Give the names of erring officials
In yet another significant direction the HC Judge wanted the TNPSC to appraise the Court of the names and position of the officials who had rejected the RTI request and who had, thereby, “failed to discharge their official duties as adumbrated under the RTI Act, 2005.”
It’s a rarest of the rare order of any constitutional court in recent times which understood the objective of transparency law and strongly demanded accountability of Public Information Officers, besides indirectly suggesting the information commissions to act boldly.
The author is the Former Central Information Commissioner and Dean, School of Law, Bennett University