Monday, August 12, 2013

RTI amendment bill tabled in Parliament "violates" principle of right to equality and equal treatment

By Venkatesh Nayak*
A preliminary analysis of the RTI amendment Bill tabled in Parliament on Monday suggests several things. At first glance the amendment Bill only seeks to exclude political parties from the purview of the RTI Act and will have retrospective effect if enacted in this form. So it effectively nullifies the CIC's order of June 2013 declaring six political parties as public authorities. Clearly, the amendment Bill violates the right to equality and equal treatment to all persons guaranteed by the Constitution under Article 14.
It seeks to treat political parties as a separate category from other substantially-financed non-governmental organisations. The statement of objects and reasons for the amendment Bill does not meet the test of reasonableness required while passing laws. 
Transparency "hampering of smooth internal working" of political parties is not a sufficient justification as such a claim can be made by other substantially financed NGOs.
Government departments made similar objections to the RTI Bill in 2004-05. But these objections were brushed aside in view of the overarching need to establish a regime of transparency. 
Similarly the justification that they already provide information under existing laws to their regulatory authorities which citizens can access under the RTI Act does not cut much ice as the same argument can be used by NGOs and private companies that are substantially financed by Governments to escape the ambit of the RTI Act.
So the Bill does not meet the requirements of Article 14 of the Constitution which guarantees equality for all natural and artificial juridical persons. Further, as it aims to nullify the order of a quasi-judicial body Courts may not take kindly to its retrospective effect.
The Supreme Court and the High Courts have frowned upon laws that are made specifically to nullify the decisions of courts having a retrospective effect. Such actions were viewed as challenges to the power of judicial review which is a basic feature of the Constitution.
The Basic Structure doctrine which informed the majority view in the landmark cases such as Kesavananda Bharati v State of Kerala and Ors. (1973), Indira Gandhi v Raj Narain (1975- Election case) Minerva Mills v Union of India (1980) and Waman Rao v Union of India (1981) struck down such laws/amendments to laws aimed at nullifying the effect of the orders of the judiciary. This position has been reiterated in a catena of later decisions.
It would be interesting to watch whether the Courts will apply the same principle to uphold the order of the Central Information Commission - a quasi-judicial body.
So the language of the Bill gives enough ammunition to challenge it in Courts as well as in the public domain.
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* Access to Information Programme, Commonwealth Human Rights Initiative

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