Maintaining neutrality and objectivity is one of the foremost characteristics of any adjudicating office-holder in a democratic society governed by rule of law. At the same time, as an individual, one can hold an opinion and even express it appropriately. The first is an ethical obligation of statutory authority, while the second is the constitutionally guaranteed right of the individual who is holding that authority. It is the wisdom that helps in choosing the right balance.
It was reported that a Central Information Commissioner (CIC) has opined that VD Savarkar, was the architect of Hindutva ideology and that his personality was above Bharat Ratna, the highest civilian honour in our country. He further said, “If he gets the award it is fine. But even if he does not get this award that won't affect his stature as the Savarkar era has already begun in India… Earlier, we did not even imagine that Article 370 of the Constitution would be abrogated in Jammu and Kashmir. But it has been repealed. This step marked the dawn of the Savarkar era in India”. He also felt that Savarkar could have prevented the partition of our country.
A Question of Propriety
It was also reported that the BJP’s 2019 Maharashtra Assembly manifesto promised to recommend Bharat Ratna for Veer Savarkar. Many other organisations have also sought this award for Savarkar. According to a report, the CIC also said, “The more the hunger for Muslim appeasement grows in Indian politics, the need for defaming Savarkar would rise in that proportion given he was the biggest symbol of unity and diversity in India.”
Asking for Bharat Ratna for Veer Savarkar and then saying that he is much above that title, et cetera, is well within his exercise of the right to express. Even if this statement is in sync with the policy and manifesto of a ruling party, it could still be protected by Article 19(1)(a) of our Constitution.
However, a question of propriety might arise; being a statutory authority under the RTI Act, is it proper to express it in public? The answer is left to one’s opinion again.
Govt's Policies Shouldn't Taint the Office
The Central Information Commission is a quasi-judicial body, though it adjudicates a small dispute regarding right to access to any document in public records subject to restrictions. It can order disclosure, or, at best, impose a penalty for violating the disclosure provisions of the RTI Act 2005. A person who is appointed as the Commissioner takes an oath to act as per law without fear or favour. Objectivity and neutrality are the norms the adjudicatory officer should follow.
The office of an Information Commissioner is not an extended branch of a government office. A commissioner should have neither love nor hate for the government’s policies. People should develop trust in the personality of the Commissioner and the office of the Commission, which depends entirely on its functioning and people’s perception about the functioning, which, in turn, is based on the judgments delivered.
People should not get the impression that a judge or a quasi-judicial officer toes the line of the ruler or opposes whatever the government does.
Like a judge, the Information Commissioner should appear neutral and non-expressive about his or her likes or dislikes.
Sometimes, the earlier views available in statements or writings of the person before becoming the Commissioner might provide some background for the people to assess his/her leanings. But once a person is seated in such an office, one that is mandated by the statute, a respectful distance from the political views and politicians is highly expected. It is unenforceable ethics, but yet, it has to be followed. No legal action might follow if that norm is ignored, and hence, it is difficult to say anything about its legality.
But is the RTI System Strong Enough to Secure Objectivity?
More than the ethical point, it is the issue of neutrality and independence of the Commission and those of individual Commissioner from the establishment. Does the RTI Act ensure that neutrality? Is the law strong enough, especially after the amendment, to secure it? Does the trend of appointments during the last 16 years give rise to such an inference?
A statute always lays down substantial principles while the executive authorities work out detailed norms for the functioning of the organisation as per those norms, and to implement the rights given by Parliament in that statute.
Such rule-making is characterised as ‘subordinate’ legislation. This means, it is almost equal to the power of legislature but stands one step down in the hierarchy. It is also part of ‘administrative law’.
The well-established norm of administration is that no rule should overrule the text or intent of the law. The norm made by an officer should not override the principle of Parliament embedded in the Act. The whole House accepts the law and the head of republic affixes the stamp of approval, whereas the rules are made by the officers of a public authority. Naturally, Parliament’s law reflects the people’s will, and that is above the will of the officers’ rules.
The original RTI Act, 2005, stipulated a five-year term or 65 years of age, whichever is earlier, for the Information Commissioner.
The intention is that a commissioner should function for the fixed term without bothering about stability in office. The amendment has tinkered with this legally fixed tenure and took it out from the purview of Parliament and brought it under the power of subordinate officers.
'As Prescribed by Centre'
This is a big blow to the independence of the Commission and Commissioners. Along with the term, the status is also truncated. The amendment did not stop at reducing the term, status and salary, but also made possible that such a change could be made by a set of officers with the support of Ministers or Prime Minister whenever they want, without any necessity of seeking approval of Parliament.
The expression, ‘as prescribed by Centre’, causes very serious damage to this right.
Party workers and loyal officers may not find any significance to this change as they cannot see how it internally weakens the institution and builds a mindset that might oppose disclosure and prefer secrecy. This is the worrying factor.
Whatever may be the views of an individual, and whatever the past habits or nurtured attitudes, once a person is appointed as Commissioner, as the Judge, his/her focus should totally be the objective enforcement of access to information right. Let us hope commissioners will do that.
(The author is a former Central Information Commissioner. This is an Opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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