BY KRISHNARAJ RAO
Today was a red-letter day for all RTI activists and all citizens. Because the Supreme Court has today removed the biggest hurdle in our path, namely the tendency of Central and state governments to appoint retiring bureaucrats as Central and State Information Commissioners, thereby putting in place their own persons with a visible tendency to favour the state administration in matters of non-disclosure of information. Today’s landmark judgment by Justice Swatanter Kumar in Namit Sharma Vs. Union of India has clearly mandated that all Information Commissions must function as two-person benches, with one person being a judicial member possessing a sound legal background. It has also mandated the State governments and Central government to make rules for proper selection of Information Commissioners after advertising the vacancy at least three months before the appointment, and following a due process.
In this extremely far-reaching judgment, SC has at last taken ownership of Information Commissions as being quasi-judicial bodies under itself, and not as an extension of the government and administration, and a post-retirement home for bureaucrats. “We are of the considered view that it is an unquestionable proposition of law that the Commission is a ‘judicial tribunal’ performing functions of ‘judicial’ as well as ‘quasi-judicial’ nature and having the trappings of a Court. It is an important cog and is part of the court attached system of administration of justice, unlike a ministerial tribunal which is more influenced and controlled and performs functions akin to the machinery of administration,” the judgment remarked.
The biggest terror of the information seeker currently is that the majority of Information Commissioners in all states and at the Centre are a law unto themselves, delivering orders that have weak legal reasoning or no reasoning at all. They tend to go easy on Public Information Officers who persistently deny information, and issue patently unreasonable and unlawful second-appeal orders, that give the information seeker no reliefs at all! Thus, the intent of the Right to Information Act, which is to guarantee timely and accurate information to the citizen, is defeated.
“An untoward consequence of this judgment is that all Information Commissions will have to stop work until members with judicial background are appointed. After the tenure of the current Chief Information Commissioner gets over, no non-judicial expert will ever be appointed as the Chairperson. So this judgement is likely to put a stop to all work at the Information Commissions until the criteria for constitution of benches is met with,” remarks Venkatesh, fearing that a paralysis will hit the working of the Information Commissions for some months. “Until fresh appointments are made the PIOs and FAAs can happily postpone matters. This could be the trend for the RTI Act for the next several months all over the country,” Venkatesh added.
However, few activists share Venkatesh Nayak’s gloom. CJ Karira is upbeat. “This is exactly the kind of order RTI activists all over the country have been praying for,” Karira says jubilantly. “I think it is time for us to pop the champagne bottles and celebrate in the streets, because, notwithstanding any temporary delays, the days of babus deliberately sabotaging the RTI Act with bad orders has come to an end,” he added.
Click here to read the Supreme Court ruling. The relevant part is highlighted in yellow color. The order is beautifully reasoned and will bring great joy to the hearts of all RTI activists.
- The judgement makes the appointment of retired judges as members of the Information Commissions mandatory.
- The post of Chief Information Commissioners in all states and at the centre will become reserved for retired judges.
- All benches must have two members – one judicial expert and one non-judicial expert.
- The Government is advised to amend Section 12 and 15 of the law to remove confusion and arbitrariness in the appointments process. As Venkatyesh Nayak of CHRI notes, “Advising change in the statute is a rare thing for the Court but they have done it this time.” The SC has said, “There is an absolute necessity for the legislature to reword or amend the provisions of Section 12(5), 12(6) and 15(5), 15(6) of the Act. We observe and hope that these provisions would be amended at the earliest by the legislature to avoid any ambiguity or impracticability and to make it in consonance with the constitutional mandates.” At present, the ambiguity is being used by state governments to make nepotistic appointments of bureaucrats and other blue-eyed boys.
- Dealing a blow to Information Commissioners’ tendency to issue arbitrary and illegal orders, the Court has ruled that all Information Commissioners are bound by the doctrine of precedents vis-a-vis the High Courts and the Supreme Court, and also the larger benches of Information Commissioner. “The good thing is this doctrine does not extend to the precedents laid down by benches of similar strength,” remarks Venkatesh.
- SC has directed that the Central Government and/or the competent authority must frame all practice and procedure related rules to make working of the Information Commissions effective and in consonance with the basic rule of law within a period of six months. “Unlawful and unconstitutional orders are the number-one problem of most RTI appellants in various states, and at the centre,” remarks C J Karira, super-moderator of RTIIndia.org, the leading online hub of RTI activists.
- SC has directed that first appellate authority (i.e. the senior officers to be nominated in terms of Section 5 of the Act of 2005) must preferably should be persons possessing a degree in law or having adequate knowledge and experience in the field of law. “The implication of this is that the days of arbitrary decisions at the stage of First Appeal will also be over soon,” says activist G R Vora.
- SC has directed all Information Commissions to henceforth work in Benches of two members each. One of hem being a ‘judicial member’, while the other an ‘expert member’. The judicial member should be a person possessing a degree in law, having a judicially trained mind and experience in performing judicial functions – a person who has practiced law at least for a period of twenty years as on the date of the advertisement. Such lawyer should also have experience in social work. High Court judges will be preferred for the post.
- Chief Information Commissioner at the Centre or State level shall only be a person who is or has been a Chief Justice of the High Court or a Judge of the Supreme Court of India. The appointment of the judicial members to any of these posts shall be made ‘in consultation’ with the Chief Justice of India and Chief Justices of the High Courts of the respective States, as the case may be.
- The appointment of the Information Commissioners at both levels should be made from amongst the persons empaneled by the DoPT in the case of Centre and the concerned Ministry in the case of a State. The panel has to be prepared upon due advertisement and on a rational basis as a fore-recorded.
- A fair and transparent method of recommending the names for appointment must be pursued. The selection process should be commenced at least three months prior to the occurrence of vacancy.
It is difficult to imagine a more far-reaching and positive development for RTI activists and information seekers!
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(Krishnaraj Rao is an RTI activist. The opinions expressed by the author and those providing comments are theirs alone, and do not reflect the opinions of Canary Trap)