In this essay, I will argue that these amendments are unconstitutional. The argument is a complex one, and so, I will set out the fundamental premises at the beginning, before developing each in turn. These are:
A. The right to information is a fundamental right. It is an aspect of Article 19(1)(a) of the Constitution (the freedom of speech and expression). B. The Constitution's guarantee of fundamental rights includes a guarantee of those incidental and ancillary aspects that are necessary to ensure that the right is effective, and not merely illusory. C. Fundamental rights under the Indian Constitution have a negative and positive dimension. In their negative dimension, they protect the individual against State interference. In their positive dimension, the State is required to take affirmative action to respect, protect, promote, and fulfil these rights. D. The Court cannot direct the Parliament to legislate in order to discharge its positive obligations under Part III of the Constitution. However, what the Court can do – and has done – is (1) in case of a legislative vacuum, to pass guidelines that have statutory force until a law is enacted, and (2) if a law exists, to test whether it fulfils the State's positive obligations under Part III. E. In case of (2), if the Court finds that the legislation comes up short, it can – and has – interpreted or struck down parts of the statute with a view to bringing it in compliance with constitutional requirements. F. It follows logically from (E) that if an existing statute that meets the positive obligations of the State under Part III is downgraded (via amendment) to a level where it no longer does so, the Court can – and should – strike down the amendments and restore status quo.
A. The right to information is a fundamental right. It is an aspect of Article 19(1)(a) of the Constitution (the freedom of speech and expression).
B. The Constitution's guarantee of fundamental rights includes a guarantee of those incidental and ancillary aspects that are necessary to ensure that the right is effective, and not merely illusory.
C. Fundamental rights under the Indian Constitution have a negative and positive dimension. In their negative dimension, they protect the individual against State interference. In their positive dimension, the State is required to take affirmative action to respect, protect, promote, and fulfil these rights.
D. The Court cannot direct the Parliament to legislate in order to discharge its positive obligations under Part III of the Constitution. However, what the Court can do – and has done – is (1) in case of a legislative vacuum, to pass guidelines that have statutory force until a law is enacted, and (2) if a law exists, to test whether it fulfils the State's positive obligations under Part III.
E. In case of (2), if the Court finds that the legislation comes up short, it can – and has – interpreted or struck down parts of the statute with a view to bringing it in compliance with constitutional requirements.
F. It follows logically from (E) that if an existing statute that meets the positive obligations of the State under Part III is downgraded (via amendment) to a level where it no longer does so, the Court can – and should – strike down the amendments and restore status quo.
Conclusion: On a combination of (D2) and (F), the RTI Amendments are unconstitutional. The RTI is a classic example of a "constitutional statute" – i.e., a statute enacted in pursuance of the State's positive obligation to fulfil a constitutional right. Judicial review extends to testing whether it does so, and to fashioning an appropriate remedy if – and depending on the manner in which – it fails to do so. In this case, that remedy is striking down the amendments and restoring the pre-amended RTI. This remedy does not amount to directing the State to legislate, and does not amount to judicial overreach.
A. The Right to Information is a Fundamental Right under Article 19(1)(a) of the Constitution
As recently as 2013, the Supreme Court held – in a judgment dealing with the Right to Information Act – that "the right to information is a facet of freedom of speech and expression contained in Article 19(1)(a) of the Constitution of India… [the] right to information thus indisputably is a fundamental right, so held in several judgments of this Court." This Supreme Court has consistently maintained this position – over decades – and there is little need to set out the plethora of judgments affirming this proposition.
Apart from being firmly entrenched in judicial precedent, the reading in of the right to information into the freedom of speech and expression makes eminent sense as a matter of first principles. For more than a century now, one of the three core underlying justifications of the freedom of speech and expression has been its importance to democracy. Only through the free flow of ideas and information – it is rightly argued – are citizens in a position to effectively exercise their democratic right of choosing their representatives. It is trite to point out that if information held by State authorities is choked off from the public domain, then the bridge between the freedom of speech and democracy crumbles entirely. The right to information, therefore, is – by necessary implication – entailed within a substantive account of the freedom of speech and expression, without which the latter would be illusory (much like how the right to privacy underlies numerous other civil rights – such as speech, association, movement etc. – and is necessary to make them effective).
This, again, is a venerable and incontestable proposition. It has been upheld in a number of cases. One classic example is PUCL v Union of India, where the Supreme Court directed the Election Commission to provide a "None of the Above" [NOTA] option to voters using Electronic Voting Machines. This direction was justified on the basis that NOTA was essential to maintain the secrecy of the ballot as well as the fairness of elections – both of which, in turn, were linked to the freedom to vote under Article 19(1)(a). Note that the Court specifically held that by failing to provide the NOTA option, the Conduct of Election Rules were not only ultra vires the parent statute, but also violated Article 19(1)(a) of the Constitution.
Again, it is unnecessary to multiple examples for the proposition. Its application to the present case should be evident as well: insofar as the independence of the Information Commissioners – who stand between the individual and the State, and are tasked with the implementation of the RTI – is integral to the right to information remaining an effective right, undermining of the same is ipso facto a violation of that right.
C. Fundamental rights under the Indian Constitution have a negative and positive dimension. In their negative dimension, they protect the individual against State interference. In their positive dimension, the State is required to take affirmative action to respect, protect, promote, and fulfill these rights.
This proposition has been affirmed by different judgments in different contexts. For example, in Prithipal Singh v State of Punjab – a case about police atrocities – the Supreme Court held that Article 21 "includes both so-called negative and positive obligations for the State. The negative obligation means the overall prohibition on arbitrary deprivation of life … [while] positive obligation requires that State has an overriding obligation to protect the right to life of every person within its territorial jurisdiction. The obligation requires the State to take administrative and all other measures in order to protect life and investigate all suspicious deaths." In Amita v Union of India – a discrimination case – the Supreme Court held that "Article 14 of the Constitution of India is both [a] negative and positive right. Negative in the sense that no one can be discriminated against anybody and everyone should be treated as equals. The latter is the core and essence of right to equality and [the] state has obligation to take necessary steps so that every individual is given equal respect and concern which he is entitled as a human being." The Supreme Court's much-discussed highway liquor ban judgment, in fact, was based on the argument that the State had failed to discharge its positive obligation to protect life under Article 21, by failing to ban liquor vends next to highways in order to prevent accidents. Examples may be multiplied.
Of course, the most recent – and famous example – of this proposition is the Right to Privacy judgment (and, as we shall shortly see, both the privacy judgment and the subsequent Aadhaar judgment are crucial to this argument). In Puttaswamy (Privacy), Chandrachud J. – writing for the plurality – correctly observed that "the Constitutional right is placed at a pedestal which embodies both a negative and a positive freedom. The negative freedom protects the individual from unwanted intrusion. As a positive freedom, it obliges the State to adopt suitable measures for protecting individual privacy." As is obvious from the rest of his judgment – noting, in particular, the work of the Srikrishna Committee – suitable measures includes suitable legislative measures.
Let us briefly take stock. It has been established so far that the right to information is a fundamental right, under Article 19(1)(a) of the Constitution. The right to information includes incidental and ancillary aspects that ensure it is an effective – and not illusory – right, one of which is the independence of the individuals charged with implementing the right (particularly against the State). And the right to information requires the State to "adopt suitable measures" guaranteeing its adequate fulfilment. It follows – necessarily – that these "suitable measures" provide for the effective independence of the aforementioned individuals (because, naturally, measures providing for an illusory right to information are hardly "suitable" under any meaning of the word, and hardly effectuate the positive content of the right.
Let me begin this section by quickly getting a red herring out of the way. It is nobody's case that what follows from (A), (B), and (C) is that the Court can issue a mandamus directing Parliament to legislate a Right to Information Act providing for suitable independence of the Information Commissioners. Such a move would be a blatant violation of the separation of powers, and the Court has not – and should not – resort to it.
At the same time, however, the Supreme Court has devised a set of more conservative remedies to deal with situations where the State refuses to discharge its positive obligations, or discharges them in an illusory fashion. A legendary example of the first kind of case, of course, is the Vishaka Judgment. It is important to note that the Vishaka judgment consisted of two parts. In the first part, the Court returned an affirmative finding that sexual harassment at the workplace was hit by Articles 14 and 15 of the Constitution. In the second part, it found that the State had failed to discharge its obligations by … doing nothing at all. Obviously, the obligation that the Court was referring to was the positive obligation to enact an appropriate law (this much was mentioned, although the Court – admittedly – did not use the word "positive").
Now, what did the Court do? The Court stated that it would discharge its duty of enforcing fundamental rights under Article 32 of the Constitution by laying down guidelines, and these guidelines would be treated as law under Article 141 until replaced by a statute (something that happened many years later, in 2013). Thus, the Court responded to the State's failure to discharge its positive obligations by temporarily standing in for it, until Parliament got its act together and legislated to do so.
I want to make one basic point here. If Vishaka is still good law – and nobody argues that it is not – then the argument I make in this essay falls well within the scope of existing judicial precedent. Because if the Court is entitled to make law to discharge positive obligations under Part III where the State has failed to act (1), then surely it is entitled to strike down law that changes an existing legislative framework, bringing it into non-compliance with Part III (2). From the scope of the separation of powers and judicial overreach, the latter is far, far more restrained than the former (although I submit, of course, that it is defensible on its own terms).
But we don't even need to rely upon Vishaka and reason through analogies. There is an excellent recent example of a case where the Supreme Court found an existing statute to fall below the standards required by positive obligations under Part III, and amended and struck down parts of it in order to bring it into compliance. This is, of course, the Aadhaar Judgment (Puttaswamy II). Recall that in Aadhaar, the Supreme Court found that several aspects of the Aadhaar Act were insufficiently protective of individual data. For our purposes here, these included (a) a five-year storage period for metadata, and (b) authorisation to a Joint Secretary-level officer to disclose Aadhaar data.
What did the Court do? It did three different things. On the first, it held that any period beyond six months was excessive, and consequently, the relevant regulations had to be amended to limit collection to six months (the Court also read down the meaning of "metadata"). On the second – which is most important for us – the Court held that "there has to be a higher ranking officer along with, preferably, a Judicial Officer. The provisions contained in Section 33(2) of the Act to the extent it gives power to Joint Secretary is, therefore, struck down giving liberty to the respondents to suitably enact a provision on the aforesaid lines, which would adequately protect the interest of individuals."
In both cases, therefore, the Supreme Court required the protection level to be scaled up, because on its terms, the legislative framework of the Aadhaar Act fell short of adequately protecting privacy and the right to personal data. In the first case – after finding that the constitutional limit on data retention was six months – it was directed that subordinate legislation be amended to comply; and in the second, the inadequately protective provision was struck down, it was spelt out what adequate protection entailed, and it was left up to the State to "suitably" legislate. Note that it is irrelevant in the first case that subordinate legislation was directed to be amended, because it is not being argued here that the Court can direct Parliament to amend the RTI (or indeed, to legislate the RTI, were it to be repealed). What is relevant here is the Court's finding that the level of protection afforded by an existing legislative framework was insufficient, its declaration of what was the adequate level (six months and higher-level officer along with a judicial officer), and its fashioning of a remedy (amending subordinate legislation, striking down law to prevent disclosure altogether until suitable protection was offered). And that, it will be noted, is exactly the form of the argument being made here.
We are now in a position to understand the corollary that flows from the above arguments. There are numerous ways in which the State can fail to fulfil its positive obligations under Part III. It can refuse to enact any legislation. Or it can enact legislation that clearly and self-evidently fails to discharge the obligations in question. In both sets of cases, the Court has fashioned remedies that stop short of a mandamus directing the State to legislate. In the first set of cases, the Court has passed guidelines that hold the field until Parliament steps in. In the second set of cases, it has spelt out how the legislative framework falls short, what manner of framework is minimally necessary for the burden to be discharged, and then – accordingly – fashioned a remedy of changing subordinate legislation or striking down primary law in a way that the pre-existing position (that was more rights-protective) is restored.
But if all this is par for the course, then the argument in the RTI case is positively conservative by comparison. Here, there was no vacuum, and therefore, no requirement for the Court to (effectively) legislate. Nor was there a finding that an originally enacted statutory framework fell short of effectively discharging positive obligations. What was there was an existing framework that did discharge the positive obligation, which was then consciously downgraded to a level that was below effective – or, to put it more bluntly, to a level that made the positive aspect of the right illusory. Now, if the Court – and if you, the reader – agree with the substantive argument that the RTI Amendments undermine the independence of the Commissioners and, by bringing them under governmental control, do make the right illusory – then there can be no doubt that the Court does have the power to strike down the amendments and restore status quo ante. In other words, while there may be a disagreement on the merits of the amendments, if the merits argument is conceded, then there can be no disagreement – based on separation of powers or any other procedural grounds – with the fact that the Court must strike down the amendments as unconstitutional.
It remains to clear up a few brief points. One of the government's justifications for the amendment was that under the old Act, information commissioners had been placed on par with Supreme Court judges and Election Commissioners, which was impermissible, as the latter are constitutional posts. Now, first of all, note that this argument is entirely irrelevant to the core point at issue – which is whether governmental control compromises independence in a manner that makes the right illusory (and indeed, the Supreme Court's own NJAC judgment has eloquent passages on why the answer to that is a clear "yes").
There is, however, a more important point to be made here. Yes, formally, Information Commissioners are statutory officers, and they do not occupy constitutional posts. But the matter is not one of pure form: in the beginning of this essay, I had referred to the RTI as a "constitutional statute", in the sense that it implemented a core fundamental right under the Constitution. Note that this terminology is not new: in the United States, for example, there is the concept of "super-statutes", which have achieved a "quasi-constitutional significance" beyond ordinary statutes. The phrase "constitutional statutes" itself was used by the famous scholar Charles Beard, who noted that "If we regard as constitutional all that body of law relative to the fundamental organization of the three branches of the federal government–legislative, executive and judicial—then by far the greater part of our constitutional law is to be found in the statutes." The term has also been used in recent British scholarship.
What I am trying to argue, therefore, is this: we miss the wood for the trees if we draw a facile distinction between the fact that Information Commissioners owe their position to a statute, while judges and Election Commissioners occupy constitutional posts. The whole point of drawing a statutory equivalence between the former and the latter was precisely because the RTI is a constitutional statute, implementing a fundamental right. In substance therefore (although not in form), the Information Commission" is what Tarunabh Khaitan has called a "fourth branch institution", performing a function that is as valuable (although not formally equivalent) as that performed by the Election Commission or the judiciary. And it follows from this that an attack upon the independence of Information Commissioners needs to be taken as seriously as an attack upon the independence of other, formally constitutional posts.
One final point: subjecting the RTI amendments to a rigorous standard of review is not only well within the judicial domain, but actually, would be part of the classic function of the court acting as a counter-majoritarian institution. By its very nature, the RTI is something that government is instinctively hostile to, as it compels transparency in governance. With the vanishing difference now in India between the executive and the Parliament, the role of the Court in preserving and protecting legislation such as the RTI has only grown in importance.
Consequently, and in sum: the RTI amendments compromise the independence of the Information Commissioners by bringing them under substantive governmental control. The Information Commissioners are tasked with implementing the RTI, and stand between the individual and the State, when the former makes fundamental rights claims upon the latter. Under the existing statutory framework*, therefore, the right to information is illusory without the independence of the Information Commissioners. Consequently, the amendments violate Article 19(1)(a) of the Constitution, and deserve to be struck down, with status quo ante being restored.
*To repeat a point made earlier: the existing statutory framework is crucial to the argument, because that is what the amendments depart from, and that is what will be restored if they were to be struck down. To the question of "what would the Court do if the Parliament repealed RTI altogether?", the answer is "that brings us into Vishaka territory" – but the fact that Parliament could repeal the RTI has no bearing on what the Court should do when the challenge is to an amendment to the existing framework (and which must therefore be measured against that framework) – and not to a legislative vacuum.
Gautam Bhatia is a Delhi based Lawyer.
This article was first published here