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Asha Kanta Sharma

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Critical Analysis of Supreme Court Judgements on the RTI Act, 2005 - Namit Sharma Vs. Union of India (2013) 1 SCC 745



Critical Analysis of Supreme Court Judgements on the RTI Act, 2005

By Shailesh Gandhi,
Former Central Information Commissioner

Judgments: Namit Sharma Vs. Union of India (2013) 1 SCC 745

The issue before the Court: The Constitutional validity of Sections
12(5), 12(6), 15(5) and 15(6) of RTI Act, were challenged, which deals
with the appointment and qualifications of Information Commissioners.

The Court held that: The Court ruled that all Information
Commissions must sit in benches of two, one of whom should be a
retired judge and there should be transparency in the selection of

Our analysis of the judgment:
This judgement would have resulted in the effective disposal rates of all
Commissions being reduced to less than 50% and possibly made it
difficult for citizens to approach Commissions without lawyers. Its
immediate impact was that many Commissions stopped working and
backlogs which were already high became unmanageable. Presently the
cost per decision of the Central Information Commission is about
Rs.5000 to 7000 per decision. This would have doubled. Since the speed
of disposals would have reduced to less than 50% citizens would have
had to wait for years at the commissions. This would have made RTI
irrelevant. The Apex Court by doing this, was in effect re-writing the
RTI Act, which is otherwise the province of the Parliament.
Just see, how this petition was decided: (Taken from DOPT’s affidavit
for Review.)

Preliminary Hearing
Listed & Part heard 11/7/2012
18/7/2012 no respondent
no respondent

DOPT learnt on 18/7 about the petition; and briefed
the Additional Solicitor General (ASG);
ASG asked for time to file a counter affidavit.
19/7 /2012 Court said this was not necessary and ASG
should give his arguments.
ASG gave his verbal arguments and judgement
was reserved on19/7/2012
DOPT filed written submissions11/09/2012
Court’s 107 page judgement allowing
writ issued on 13/09/2012

DOPT’s anguished statement in the review petition: “ T. FOR THAT this
Hon’ble Court, in the impugned judgment, has neither considered the
oral arguments of the Petitioner herein, nor the Written Submissions
filed by the Petitioner on 11.09.2012, putting forth the case of the
Petitioner. The impugned judgment, at no place, records the
submissions made by the counsel for the Petitioner when the matter was
heard.” The respondent, Union of India,-in the petition is mentioned
only once in the 107 page judgement,- in the title. The entire judgement
reads as if there is only a petitioner and the Court!

The judgement disrupted the working of some Information
Commissions. If implemented it would have dropped the disposal rate
to less than 50% since two Commissioners would have to sit together,
one of whom would have to be a retired judge. Generally retired judges
insist on lawyers arguing matters before them, whereas currently less
than 1% of the appellants have a lawyer. This would have discouraged
most ordinary citizens from approaching the Commission. The judgment
appears to have been given without regard to the mandate of RTI law. If
it had not been reviewed it would have damaged RTI permanently.
The order was partly stayed in judgment 7 and the main objectionable
parts of the judgement which had been given were withdrawn. The
revised judgment claimed that the direction of transparency in
appointments was still in operation, but gave no meaningful directions.
Consequently the appointment of Commissioners continues on the basis
of arbitrariness and patronage.

The only change which has come is that the government spends money
in conducting the farce of advertising the posts. After that the
arbitrariness and patronage continue.




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