How the CIC missed the wood for the trees

The Right to Information Act, 2005, with its 31 sections and two schedules, is one of the outstanding legislations of Indian Parliament.   In view of its inherent potential to ensure accountability of the institutions of governance, and enhance the level of participation of citizens in the administration, there has been a natural tendency on the part of the Central Information Commission, to interpret its provisions liberally.   This has manifested in a number of pro-citizen rulings from the CIC and the appellate courts leading to a greater degree of transparency over decision-making of authorities, than what was possible earlier.

An expansive understanding of the definition of ‘public authority’ under the Act has apparently helped the CIC to bring many quasi-public authorities and private entities with substantial funding from the Government within the Act’s ambit.   As the Act requires the `public authorities’ to declare information about them suo motu, and to designate Public Information Officers to answer queries from information-seekers, the definition and interpretation of ‘public authorities’ determines the scope of the Act.

The CIC’s June 3 order bringing political parties within the ambit of public authorities, no doubt, stems from its sound objectives to make political parties, receiving substantial indirect funding from the Government, accountable, and empower citizens to use the Act to ensure it.  However, the legal reasoning adopted in the order, is vulnerable and may not stand scrutiny in the appellate courts.

The crucial question is whether a political party can be held as ‘public authority’  under Section 2(h) of the Act.  This provision deserves to be reproduced verbatim: “public authority” means any authority or body or institution of self-government established or constituted,- (a) by or under the Constitution; (b) by any other law made by Parliament; (c) by any other law made by State Legislature; (d) by notification issued or order made by the appropriate Government, and includes any – (i) body owned, controlled or substantially financed; (ii) non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.”

If one reads Section 2(h) carefully, there can be no argument over its first four parts, that is, (a) to (d).  The problem arises only with regard to the use of the expression “and includes any”, followed by (i) and (ii) under (d).

The CIC relies on the Delhi High Court’s judgment delivered by Justice Ravindra Bhat in Indian Olympic Association v.Veeresh Malik and Others (January 7, 2010), wherein the Court has observed that the expression ‘public authority’ has to be interpreted liberally and not restrictively. 

In this judgment, the High Court has conceded that a facial interpretation  of Section 2(h) would indicate that even the bodies brought in by the extended definition, that is, through the use of the words “and includes any” are to be constituted under, or established  by a notification, issued by the appropriate Government. 

The court then added as follows: “If, indeed, such were the intention, sub clause (i) is a surplusage, since the body would have to be one of self-government, substantially financed, and constituted by a notification, issued by the appropriate government.  Secondly – perhaps more importantly, it would be highly anomalous to expect a ‘non-government organisation’ to be constituted or established by or under a notification issued by the Government.  These two internal indications actually have the effect of extending the scope of the definition  “public authority”; it is, thus, not necessary that the institutions falling under the inclusive part have to be constituted, or established under a notification issued in that regard....irrespsective of the constitution (i.e. it might not be under or by a notification), if there was substantial financing, by the appropriate government, and ownership or control, the body is deemed to be a public authority.  This definition would comprehend  societies, cooperative societies, trusts and other institutions where there is control, ownership,  (of the appropriate government) or substantial financing.  The second class, i.e., non-government organisation, by its description, is such as cannot be “constituted” or “established” by or under a statute or notification.” 

Note that in its list of what the definition of ‘public authority’ would include, the High Court lastly mentions “other institutions”.  Individual political parties do not qualify to be called institutions; party system does.  As party system cannot constitute an independent entity, the question of considering it a public authority does not arise.

The registration of political parties under Section 29A of the  Representation of People Act, 1951, refers to political parties before their registration, as “an association or body of individual citizens calling itself a political party”.  The implication here is that once registered, they cease to become an association or body of individual citizens, and become political parties, with certain unique rights and responsibilities, which the R.P.A bestows on them. 

Therefore, there is an element of doubt whether the “body” referred to in Section 2 (h) (i) includes or could include a political party.    The principle of ‘surplasage’, used by the High Court to give meaning to Section 2(h)(d)(i)  is a recognised rule of interpretation.  It requires that effort should be made to give meaning to each and every word used by the Legislature.  The Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons.

But the rule cannot be invoked, as the CIC has done, to interpret a provision, so as to include what the legislature did not intend to include at the time of enactment.  Otherwise, the courts may invite the criticism of wrongly resorting to casus omissus, that is, a matter which should have been, but has not been provided for in a statute cannot be supplied by courts, as to do so will be legislation and not construction. 

The Supreme Court’s constitution Bench reiterated this principle in a judgment on August 23, 2001 (Daddi Jagannathamv. Jammulu Ramulu): “Undoubtedly if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature's defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.”

The CIC, which acts as a Court while deciding a matter before it, has not demonstrated that Parliament unintentionally omitted to include political parties under Section 2(h)(d)(i); instead, it has assumed that Parliament intended to include political parties under the provision, without making a detailed inquiry into the intention of Parliament at the time of law-making.

The RTI Bill, 2004 – which was the precursor to the RTI Act, 2005 – defined “public authority” as any authority or body constituted by the Constitution, Parliament, or notification/order by Government.   The National Advisory Council recommended to the Government that this definition  be modified to cover the States, Panchayati Raj institutions, and other local bodies.  The Parliamentary Standing Committee which considered the Bill had accepted this recommendation, and this led to the Government’s redrafting the definition as it is now found in the Act.  There is no evidence to suggest that the redrafting of the definition was prompted by the demand to include political parties within the ambit of the Act. 

The debate in both the Houses of Parliament ( Lok Sabha & Rajya Sabha) on the Bill between May 10 and 12, 2005, also does not suggest that Members had intended to include political parties within the expansive definition of public authorities.  It is unlikely that Parliament would have left it to the CIC to decide whether political parties could be considered as public authorities under the RTI Act.  The Supreme Court has held in catena of cases that if a statutory provision is open to more than one interpretation, the Court has to choose the one which represents the true intention of the Legislature. 

Guest Post: Composition of Information Commissions

Guest Post by Shibani Ghosh, Research Associate, Centre for Policy Research and former Legal Consultant to the CIC

The Supreme Court’s judgment in Namit Sharma v Union of India with respect to the composition of Information Commissions across the country is remarkable, and most unfortunate. In essence it says this: only retired judges can ensure the fair and efficacious administration of justice under the RTI Act. If this assumption were not problematic enough, the Court then effectively appropriates the powers of the legislature and the executive by telling them exactly what they must do. The primary issue before the Court was the constitutionality of the eligibility criteria for Information Commissioners. Currently, Section 12(5) of the RTI Act states that ‘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’ are eligible to be Information Commissioners. The Court found this provision to be vague – yet not discriminatory and, importantly, not suffering from any constitutional infirmity. But nevertheless, and strangely, the Court proceeds to rule on how the provision must be read to ensure its constitutionality. While construing the statutory provision, the Court gives several directions in the judgment. Perhaps the two most significant directions are: first, since Information Commissions possess the essential attributes of a court, and their functions are more judicial than administrative in nature, persons with qualification, experience and knowledge in law should be appointed to the Commissions. As judicial members, they would be able to perform the adjudicatory tasks better. Second, only former or current Supreme Court judges and Chief Justices of High Courts should be appointed Chief Information Commissioners.

This construction of Section 12(5) of the RTI Act is nothing more than a re-writing of the statutory provision. Addition and substitution of words in statutes by Courts is contrary to well-accepted principles of statutory interpretation.  This is legally impermissible, more so since the Court finds no constitutional infirmity to begin with. The Court’s detailed directions on the procedure for appointment of judicial and non-judicial members, the criteria for eligibility, and who can be appointed as a Chief Information Commissioner falls squarely within the domain of Parliament. The judgment violates the core constitutional principle of the separation of powers. Statutes establishing tribunals specifically lay down the qualifications of the Chairman and different categories of members. There are no such provisions in the RTI Act which demonstrates that Parliament did not intend to draw such bright lines. Parliament also did not provide for any special eligibility criterion for the Chief Information Commissioner, perhaps since his adjudicatory powers and functions are precisely the same as the other Commissioners. Even the selection procedure is the same. For the Central Information Commissioners, a committee of the Prime Minister, Leader of the Opposition and a Cabinet Minister make recommendations to the President. Consultation with the Chief Justice of India before appointing one class of Commissioners, i.e. the judicial members, is an additional requirement that the Court has incorporated into the existing provision. 

The Court does not stop there, and intrudes even further into the domain of the policy-maker. The direction that the Commission should sit in benches consisting of one judicial and one non-judicial member is a decision about the day-to-day functioning of the Commissions. Such a policy decision ought typically to be taken by the appropriate government, under Sections 27 or 28, after due consideration of various factors including necessity, the pendency of cases and a more general cost-benefit analysis. The directions pertaining to the appointment of judicial members are legally problematic – the Court’s reasoning for mandatorily requiring judicial members is not above reproach. Part of the reasoning appears to flow from earlier decisions of the Court with respect to the constitutional requirements for the proper constitution of Administrative Tribunals. However, an analogy with those cases may be inapposite. Those tribunals were constituted to hear cases which were earlier heard by High Courts. To ensure that the alternative institutional mechanism was no less efficacious, tribunal members were expected to afford the same judicial treatment to the cases as the High Courts would otherwise have. But in the case of Information Commissions, their adjudicatory role was never previously performed by any Court as the statutory rights under the RTI Act are novel. 

The Court’s concerns about the importance of the Information Commission’s functions are not misplaced. The Commissioners are occasionally confronted with complex legal issues, and Commissioners without a legal background may require some assistance initially in appreciating how to conduct a quasi-judicial proceeding, and how to deliver a reasoned decision. But that is hardly an insurmountable problem, nor does it require the drastic overhauling of the RTI Act that the Court seems to deem necessary. The Information Commissioners can be assisted by a well-trained in-house Legal Department. Furthermore, if the Government finds it necessary, it may propose the appointment of one or two Information Commissioners with a legal/judicial background. As long as the principles of natural justice are observed by the Commissioners, and they perform their functions conscientiously keeping in mind the overarching mandate of the Act, the public has little reason to lose faith in the RTI regime. Unfortunately, the Apex Court has decided otherwise.

Guest Post: Bringing transparency and efficiency in Government functioning

The following is a guest post from Sushant Sinha, the person behind Indian Kanoon.

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While the Right to Information (RTI) Act empowers Indians to obtain any
information about government functioning, it is still mostly reactive in
nature. People have to ask for specific information which will be furnished
only with in a specific time frame. In the age of information technology such
delays are of astronomical order. Making information proactively
available to people can significantly improve government delivery of services
by providing transparency in government functioning. Imagine an ordinary Indian
citizen that can browse, search, plot and compare all government contracts with
a few clicks. How fantastic would that be?

Some government departments and agencies have starting providing information
proactively about their activity. However, it is not quite clear as to why many
departments are still trailing in providing the information. The potential is
widely subdued. One important problem is that the software used by government
departments is mostly in house developed and in a very bureaucratic fashion.
They are not usually not answerable to any citizen about how fresh and complete
the data is. Unfortunately, the software developers can control all these
decisions without being answerable. And many times it is not clear whether
government department is not providing the data or the software is hiding the
information.

What is needed is to open up the software that government is going to use. Some
citizens can easily look into why certain things are behaving the way they are
and educate others. Other citizens can contribute the features that they think
are important. Hence, the software that controls the government information
would be accessible to everyone for criticism and contribution.

Beside transparency issue, Government will also benefit by leveraging community
support for its software development projects. This will also speed up
development and bring e-services much quickly to the people.

Finally the question is how we can accomplish this idea. If government is ready
to open up its software development agencies, well and good. Otherwise we
should start CodeForIndia (very similar to the organization
http://codeforamerica.org/). This can operate independent of government and be
supported by other organizations interested in government transparency and
efficient delivery of services. The organization should compete then with
existing government agencies for software development for India.

Anonymous question (edited):

Is the idea to open up even more information on government functioning,
possibly all? Is that even practically or legally possible? How could
government function by opening up everything?

My Reply:

Of course there is some level of confidentiality required in government
functioning. I think it is legislature's job to clearly demarcate what is not
public information. Currently, RTI draws that line. I am only arguing that the
information that can be obtained by public using a petition should be
"proactively" available. And the objective of this effort should be to enable
government agencies/departments to proactively share it by providing
technological help. A lot of that is missing which limits government agencies
in sharing the data. And government benefits by zero cost in implementation.